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The prohibition against cruel and unusual punishment comes from the Eighth Amendment, which states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Alaska Constitution has a similar provision. Alaska Const. Art. 1, §12. Although the ban on cruel and unusual punishment relates directly to sentencing, which is a criminal procedure issue, criminal statutes mandating various penalties can be held unconstitutional under the Eighth Amendment just like statutes offending the due process clause, so a brief discussion is relevant to this chapter. Another facet of excessive punishment is a criminal sentencing enhancement that is based on facts not found beyond a reasonable doubt by a jury. This has been held to violate the Sixth Amendment, which states, “In all criminal prosecutions, the accused shall enjoy the right to a…trial, by an impartial jury of the State and district wherein the crime shall have been committed.”
In this section, three issues are analyzed and discussed: the infliction of cruel punishment, a criminal sentence that is too severe, and a criminal sentence that is invalid under the right to a jury trial. All three issues, although process-oriented, impact when, and to what extent, criminal liability is implicated.
Infliction of Cruel Punishment
In general, the government must refrain from inflicting cruel or barbaric punishments on criminal defendants in violation of the Eighth Amendment. In particular, cases asserting that a criminal punishment is inhumane often focus on capital punishment, which is the death penalty.
Brief Synopsis of the History of Capital Punishment[1]
The death penalty has been used as a criminal punishment since the eighteenth century B.C. American death penalty law is influenced by the British because the colonists brought English common law principles, including capital punishment, with them to the Americas. The first execution in America took place in 1608, for spying. Methods of execution and capital crimes varied from colony to colony. In the late 1700s, a movement to abolish the death penalty began, and in 1846, Michigan became the first state to eliminate the death penalty for all crimes except treason. Throughout the nineteenth and twentieth centuries, the United States fluctuated in its attitude toward capital punishment. Executions were at an all-time high in the 1930s.
Except for a four-year span between 1972 and 1976, the US Supreme Court consistently upheld the constitutionality of the death penalty. In 1972, in the landmark decision of Furman v. Georgia, 408 U.S. 238 (1972), the US Supreme Court held that Georgia’s death penalty statute, which gave the jury complete discretion to sentence a criminal defendant to death, was arbitrary and therefore cruel and unusual punishment in violation of the Eighth Amendment. This decision invalidated death penalty statutes in forty states. Importantly, the US Supreme Court found that the process of imposing the death penalty was unconstitutional; the Court did not find the death penalty itself unconstitutional. The Court has been clear that capital punishment is not inherently barbaric or an unacceptable form of punishment. Instead, the Court has repeatedly focused on the specific application (method) of the death penalty.
In 1976, the US Supreme Court revisited the constitutionality of capital punishment statutes in the case of Gregg v. Georgia, 428 U.S. 153 (1976), in which it found that capital punishment passed constitutional muster if the government employed a “guided discretion” statute. Specifically, the court established a three-part process to impose the death penalty. First, the trial must be bifurcated – the jury must consider the defendant’s guilt separate from the defendant’s sentence. Second, the jury’s decision to impose the death penalty must be guided by specific, statutory aggravating and mitigating factors. Finally, the jury’s decision must include an automatic right of appeal. See id. at 205-07.
As of May 2021, 27 states and the federal government authorize the death penalty; 23 states and the District of Columbia do not. Alaska does not authorize the death penalty, although the state has considered it several times throughout its history.
Disproportionate Punishment
Disproportionate punishment may also fall within the ambit of cruel and unusual punishment. Disproportionate punishment asserts that a criminal punishment is too severe for the crime. Two criminal punishments garner many disproportionate punishment claims: capital punishment and “three-strikes statutes.”
Capital Punishment as Disproportionate
Although the criticisms of the death penalty are well-known, the US Supreme Court has been clear that capital punishment is not inherently barbaric or unacceptable. Instead, the Court has repeatedly focused on whether the specific application of the death penalty is barbaric or inhumane. Capital punishment can be disproportionate because it is too severe for the crime or because it is too severe for the particularcriminal defendant.
Capital Punishment That Is Disproportionate to the Crime
Death is the ultimate punishment, so it must be proportional to the crime the defendant committed. Although the states and the federal government have designated many capital crimes that may result in death (for example, treason), the US Supreme Court has confirmed that the death penalty is too severe for most crimes. In Coker v. Georgia, 433 U.S. 584 (1977), the Court held that a sentence of death is grossly disproportionate for the crime of raping an adult woman. Many years later, in Kennedy v. Louisiana, 554 U.S. 407 (2008), the Court extended this principle and found that “the death penalty is not a proportional punishment for the rape of a child.” See id. at 446. Kennedy maintained the distinction between crimes committed against individuals and crimes committed against the government, like terrorism or treason. See id. at 437. The only crime against an individual that currently merits the death penalty is murder, which is the unlawful killing of another with malice aforethought.
Capital Punishments That Are Disproportionate to the Criminal Defendant
Capital punishment is overly severe for certain criminal defendants. Given that all criminal punishments, including capital punishment, must serve a penological purpose, some criminal defendants are ineligible for the death penalty. Specifically, the imposition of the death penalty is cruel and unusual punishment for a criminal defendant who was a juvenile at the time of the offense, (Roper v. Simmons, 567 U.S 460 (2005), who is mentally incompetent at the time of the execution (Ford v. Wainwright, 477 U.S. 399 (1986)), or suffers from a severeintellectual disability (mental retardation) at the time of the execution (Atkins v. Virginia, 536 U.S. 304 (2002)).
US Supreme Court jurisprudence recognizes that juveniles are different, and must be treated differently when imposing severe sentences. This principle is explored in more detail below. Mental competency, on the other hand, can cover a variety of disorders, but the US Supreme Court has held that a criminal defendant has a constitutional right to a determination of “sanity” before execution. See Ford, 477 U.S. at 405. Intellectual disability is distinct from mental illness and is defined by the US Supreme Court as a substantial intellectual impairment that impacts everyday life, and was present at the defendant’s birth or during childhood. See Atkins, 536 U.S. at 317.
Disproportionate Punishment of Juveniles
In Roper v. Simmons, the Court invalidated the death penalty for all juvenile offenders under the age of 18 at the time of the offense. In explaining its rationale, the Court noted that punishment must be graduated and proportioned to both the offender and the offense. See id at 560. Imposing the death penalty on a juvenile, given the physical and mental immaturity, is fundamentally disproportionate. However, the Court has not limited its intervention to capital punishment. In Graham v. Florida, 560 U.S. 48 (2010), the Court held that life without parole violated the Eighth Amendment when imposed on juvenile nonhomicide offenders. In Graham, a sixteen-year-old defendant was convicted of armed burglary and received life without the possibility of parole. The Court found that such a severe sentence was grossly disproportionate to the severity of the offense. See id at 82. The Eighth Amendment precludes a juvenile who is not convicted of murder from receiving a life sentence. The possibility of rehabilitation has to be considered.
Miller v. Alabama, 567 U.S. 460 (2012)
Miller v. Alabama was decided two short years after Graham. In Miller, the US Supreme Court faced the question left unanswered by Graham – whether a juvenile could be sentenced to a mandatory term of life without the possibility of parole for murder. As you read the case, consider whether it makes sense to treat juveniles differently for such serious crimes.
132 S.Ct. 2455
Supreme Court of the United States
Evan MILLER, Petitioner
v.
ALABAMA.
Decided June 25, 2012.
Opinion
Justice KAGAN delivered the opinion of the Court.
The two 14–year–old offenders in these cases were convicted of murder and sentenced to life imprisonment without the possibility of parole. In neither case did the sentencing authority have any discretion to impose a different punishment. State law mandated that each juvenile die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example, life with the possibility of parole) more appropriate. Such a scheme prevents those meting out punishment from considering a juvenile’s “lessened culpability” and greater “capacity for change,” … and runs afoul of our cases’ requirement of individualized sentencing for defendants facing the most serious penalties. We therefore hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.”
I.
In November 1999, petitioner Kuntrell Jackson, then 14 years old, and two other boys decided to rob a video store. En route to the store, Jackson learned that one of the boys, Derrick Shields, was carrying a sawed-off shotgun in his coat sleeve. Jackson decided to stay outside when the two other boys entered the store. Inside, Shields pointed the gun at the store clerk, Laurie Troup, and demanded that she “give up the money.” Troup refused. A few moments later, Jackson went into the store to find Shields continuing to demand money. At trial, the parties disputed whether Jackson warned Troup that “[w]e ain’t playin’,” or instead told his friends, “I thought you all was playin.” When Troup threatened to call the police, Shields shot and killed her. The three boys fled empty-handed.
Arkansas law gives prosecutors discretion to charge 14–year-olds as adults when they are alleged to have committed certain serious offenses. The prosecutor here exercised that authority by charging Jackson with capital felony murder and aggravated robbery. Jackson moved to transfer the case to juvenile court, but after considering the alleged facts of the crime, a psychiatrist’s examination, and Jackson’s juvenile arrest history (shoplifting and several incidents of car theft), the trial court denied the motion, and an appellate court affirmed. A jury later convicted Jackson of both crimes. Noting that “in view of [the] verdict, there’s only one possible punishment,” the judge sentenced Jackson to life without parole.
Like Jackson, petitioner Evan Miller was 14 years old at the time of his crime. Miller had by then been in and out of foster care because his mother suffered from alcoholism and drug addiction and his stepfather abused him. Miller, too, regularly used drugs and alcohol; and he had attempted suicide four times, the first when he was six years old.
One night in 2003, Miller was at home with a friend, Colby Smith, when a neighbor, Cole Cannon, came to make a drug deal with Miller’s mother. The two boys followed Cannon back to his trailer, where all three smoked marijuana and played drinking games. When Cannon passed out, Miller stole his wallet, splitting about \$300 with Smith. Miller then tried to put the wallet back in Cannon’s pocket, but Cannon awoke and grabbed Miller by the throat. Smith hit Cannon with a nearby baseball bat, and once released, Miller grabbed the bat and repeatedly struck Cannon with it. Miller placed a sheet over Cannon’s head, told him “ ‘I am God, I’ve come to take your life,’ ” and delivered one more blow. The boys then retreated to Miller’s trailer, but soon decided to return to Cannon’s to cover up evidence of their crime. Once there, they lit two fires. Cannon eventually died from his injuries and smoke inhalation.
Alabama law required that Miller initially be charged as a juvenile, but allowed the District Attorney to seek removal of the case to adult court. The D.A. did so, and the juvenile court agreed to the transfer after a hearing. The State accordingly charged Miller as an adult with murder in the course of arson. That crime (like capital murder in Arkansas) carries a mandatory minimum punishment of life without parole.
Relying in significant part on testimony from Smith, who had pleaded to a lesser offense, a jury found Miller guilty. He was therefore sentenced to life without the possibility of parole. The Alabama Court of Criminal Appeals affirmed, ruling that life without parole was “not overly harsh when compared to the crime” and that the mandatory nature of the sentencing scheme was permissible under the Eighth Amendment.
We granted certiorari in both cases and now reverse.
II.
The Eighth Amendment’s prohibition of cruel and unusual punishment “guarantees individuals the right not to be subjected to excessive sanctions.” That right, we have explained, “flows from the basic ‘precept of justice that punishment for crime should be graduated and proportioned’ ” to both the offender and the offense. As we noted the last time we considered life-without-parole sentences imposed on juveniles, “[t]he concept of proportionality is central to the Eighth Amendment.” [citingGraham]. And we view that concept less through a historical prism than according to the evolving standards of decency that mark the progress of a maturing society.
The cases before us implicate two strands of precedent reflecting our concern with proportionate punishment. The first has adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty. So, for example, we have held that imposing the death penalty for nonhomicide crimes against individuals, or imposing it on mentally retarded defendants, violates the Eighth Amendment. See Kennedy v. Louisiana, 554 U.S. 407 (2008); Atkins v. Virginia, 536 U.S. 304 (2002). Several of the cases in this group have specially focused on juvenile offenders, because of their lesser culpability. Thus, Roper held that the Eighth Amendment bars capital punishment for children, and Graham concluded that the Amendment also prohibits a sentence of life without the possibility of parole for a child who committed a nonhomicide offense. Graham further likened life without parole for juveniles to the death penalty itself, thereby evoking a second line of our precedents. In those cases, we have prohibited mandatory imposition of capital punishment, requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense before sentencing him to death. Here, the confluence of these two lines of precedent leads to the conclusion that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment.
To start with the first set of cases: Roper and Graham establish that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, we explained, “they are less deserving of the most severe punishments.” [citing Graham]. Those cases relied on three significant gaps between juveniles and adults. First, children have a “ ‘lack of maturity and an underdeveloped sense of responsibility,’ ” leading to recklessness, impulsivity, and heedless risk-taking. [citing Roper]. Second, children “are more vulnerable … to negative influences and outside pressures,” including from their family and peers; they have limited “control over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. Ibid. And third, a child’s character is not as “ well formed” as an adult’s; his traits are “less fixed” and his actions less likely to be “evidence of irretrievable depravity.” [citing Roper].
Our decisions rested not only on common sense—on what “any parent knows”—but on science and social science as well. In Roper, we cited studies showing that [only a relatively small proportion of adolescents who engage in illegal activity develop entrenched patterns of problem behavior. And in Graham, we noted that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds”—for example, in “parts of the brain involved in behavior control.” We reasoned that those findings—of transient rashness, proclivity for risk, and inability to assess consequences—both lessened a child’s “moral culpability” and enhanced the prospect that, as the years go by and neurological development occurs, his “deficiencies will be reformed.”
Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes. Because “the heart of the retribution rationale” relates to an offender’s blameworthiness, “‘the case for retribution is not as strong with a minor as with an adult.” Nor can deterrence do the work in this context, because the same characteristics that render juveniles less culpable than adults – their immaturity, recklessness, and impetuosity—make them less likely to consider potential punishment. Similarly, incapacitation could not support the life-without-parole sentence in Graham: Deciding that a “juvenile offender forever will be a danger to society” would require “making a judgment that he is incorrigible”—but “incorrigibility is inconsistent with youth.” And for the same reason, rehabilitation could not justify that sentence. Life without parole “forswears altogether the rehabilitative ideal.” It reflects “an irrevocable judgment about an offender’s value and place in society,” at odds with a child’s capacity for change.
Most fundamentally, Graham insists that youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole. In the circumstances there, juvenile status precluded a life-without-parole sentence, even though an adult could receive it for a similar crime. And in other contexts as well, the characteristics of youth, and the way they weaken rationales for punishment, can render a life-without-parole sentence disproportionate. “An offender’s age,” we made clear in Graham, “is relevant to the Eighth Amendment,” and so “criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.”[…]
But the mandatory penalty schemes at issue here prevent the sentencer from taking account of these central considerations. By removing youth from the balance—by subjecting a juvenile to the same life-without-parole sentence applicable to an adult—these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes Graham ‘s (and also Roper ‘s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.
In light of Graham’s reasoning, [our precedent] show the flaws of imposing mandatory life-without-parole sentences on juvenile homicide offenders. Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sentence as every other—the 17–year–old and the 14–year–old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one. And still worse, each juvenile (including these two 14–year–olds) will receive the same sentence as the vast majority of adults committing similar homicide offenses—but really, as Graham noted, a greater sentence than those adults will serve.
So Graham and Roper and our individualized sentencing cases alike teach that in imposing a State’s harshest penalties, a sentencer misses too much if he treats every child as an adult. To recap: Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. […] And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.
Both cases before us illustrate the problem. Take Jackson’s first. As noted earlier, Jackson did not fire the bullet that killed Laurie Troup; nor did the State argue that he intended her death. […]To be sure, Jackson learned on the way to the video store that his friend Shields was carrying a gun, but his age could well have affected his calculation of the risk that posed, as well as his willingness to walk away at that point. All these circumstances go to Jackson’s culpability for the offense. And so too does Jackson’s family background and immersion in violence: Both his mother and his grandmother had previously shot other individuals. At the least, a sentencer should look at such facts before depriving a 14–year–old of any prospect of release from prison.
That is true also in Miller’s case. No one can doubt that he and Smith committed a vicious murder. But they did it when high on drugs and alcohol consumed with the adult victim. And if ever a pathological background might have contributed to a 14–year–old’s commission of a crime, it is here. Miller’s stepfather physically abused him; his alcoholic and drug-addicted mother neglected him; he had been in and out of foster care as a result; and he had tried to kill himself four times, the first when he should have been in kindergarten. Nonetheless, Miller’s past criminal history was limited—two instances of truancy and one of “second-degree criminal mischief.” That Miller deserved severe punishment for killing Cole Cannon is beyond question. But once again, a sentencer needed to examine all these circumstances before concluding that life without any possibility of parole was the appropriate penalty.
We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. Because that holding is sufficient to decide these cases, we do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger. But given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.
[…]
It is so ordered.
Gray v. State, 267 P.3d 667 (Alaska App. 2011)
The Alaska Court of Appeals decided Gray v. State several years before Miller v. Alabama. As you read Gray, ask yourself whether the decision is inconsistent with – and thus invalid – given the US Supreme Court’s decision in Miller.
267 P.3d 667
Court of Appeals of Alaska.
Kira GRAY, Appellant,
v.
STATE of Alaska, Appellee.
No. A–10305.
Dec. 9, 2011.
BOLGER, Judge.
Alaska Statute 47.12.030(a) provides that when a sixteen-year-old minor commits certain serious felonies, including murder, the minor “shall be charged, held, released on bail, prosecuted, sentenced, and incarcerated in the same manner as an adult.” Kira Gray argues that her sentence for first-degree murder violates the constitutional protections against cruel and unusual punishment … because she was a minor at the time of her offense. But we conclude that this combination of the automatic waiver statute and the adult sentencing statute is consistent with “evolving standards of decency” and [therefore constitutional].
[…]
Background
Gray was sixteen years old and dating Mario Page, an Anchorage drug dealer. While Page was out of state, Gray stole nine ounces of cocaine from Page and gave it to her sister’s boyfriend, Terrell Houngues. When Page returned and found out about the theft, he became angry.
Gray concocted a plan to pacify Page. She falsely told Houngues that she had had an argument with Page and that she knew where Page hid money and drugs. She suggested to Houngues that they should steal Page’s money and drugs. This plan was simply a ruse to kidnap Houngues.
Gray picked up Houngues and drove him to a remote location in the Mat–Su Valley. Page and three other men then arrived in a separate car and forced Houngues into the trunk. They drove to another spot and removed Houngues from the trunk. Page demanded to know what became of the nine ounces of stolen cocaine. When Houngues denied any knowledge of the drugs, Gray shot him in the knee. Houngues was then screaming in pain, so Page told Gray to “shut him up.” Gray and another man, Tommie Patterson, then shot Houngues multiple times, killing him.
Gray was charged and prosecuted as an adult based on the statute that automatically waives juvenile jurisdiction for certain serious crimes. Prior to trial, Gray made a motion for the court to declare the automatic waiver statute unconstitutional, but Superior Court Judge Eric Smith denied the motion. Gray, Page, and Patterson were convicted of murder and kidnapping in separate trials.
At the sentencing hearing, Gray presented testimony from two mental health professionals. Drs. Marty Beyer and Ronald Roesch provided opinions on developmental immaturity in general, along with specific opinions about Gray’s mental state. Dr. Beyer testified that Gray “showed a variety of kinds of immature thinking … that led to irrational behavior and poor moral reasoning, especially when she felt coerced.” Dr. Beyer also testified that juvenile sentences should be less punitive than adult sentences and should generally provide more and earlier opportunities for parole or release because most juvenile offenders are very immature and have “a huge amount of developing still to do.”
Dr. Roesch testified that Gray was “amenable to rehabilitation and that she does have a high potential for change.” Like Dr. Beyer, Dr. Roesch emphasized that, in crafting a juvenile sentence, the court must take developmental differences between juveniles and adults into consideration.
At the conclusion of the sentencing hearing, Judge Smith imposed a sentence of ninety-nine years’ imprisonment with forty-four years suspended for Gray’s murder conviction and a consecutive sentence of ten years’ imprisonment for kidnapping. Gray now appeals.
Discussion
The automatic waiver statute does not constitute cruel and unusual punishment.
As noted above, when a sixteen-year-old minor commits certain serious felonies, the minor is “prosecuted, sentenced, and incarcerated in the same manner as an adult.” Under this statute, a minor convicted of first-degree murder is subject to the same sentence as an adult—generally a sentence of twenty to ninety-nine years’ imprisonment. Gray argues that this statutory scheme violates the state and federal prohibitions against cruel and unusual punishment because the statutes do not recognize the differences in culpability between juveniles and adults by providing for early eligibility for discretionary parole.
Gray relies mainly on two recent decisions from the United States Supreme Court: Roper v. Simmons and Graham v. Florida. In Roper, the Court concluded that the Eighth Amendment bars the execution of individuals who were juveniles at the time they committed murder. In Graham, the Court concluded that the Eighth Amendment forbids a juvenile from being sentenced to life without parole for a nonhomicide crime.
In both cases, the Court applied a test that focuses on the characteristics of the offender, considering whether there is a “national consensus” against the imposition of the sentence in question and whether the sentence is categorically unconstitutional. [Specifically, the Graham Court] concluded that
juveniles (as a group) are “less deserving of the most severe punishments” because, compared to adults, they exhibit a “lack of maturity and an underdeveloped sense of responsibility,” because they are “more vulnerable or susceptible to negative influences and … peer pressure,” and because their characters are “not as well formed.”
Under the Alaska Constitution, we have generally applied a different test when we have focused on the characteristics of the penalty imposed. We have asked whether the punishment is so disproportionate to the offense as to be completely arbitrary and shocking to a sense of justice. But in a case where the Alaska Supreme Court focused on the characteristics of the offender, it applied a test similar to the test employed in Roper and Graham, asking whether the sentence violated “the evolving standards of decency that mark the progress of a maturing society.” The present case focuses on Gray’s status as a juvenile. We will therefore focus on national standards and categorical considerations to decide whether a juvenile can be sentenced to an adult sentence for first-degree murder.
The Wisconsin Supreme Court recently considered a similar question in State v. Ninham. Omer Ninham was sentenced to life in prison without the possibility of parole for first-degree intentional homicide. On appeal, Ninham argued that sentencing a fourteen-year-old to life imprisonment violates the Eighth Amendment.
The Wisconsin court considered whether sentencing a fourteen-year-old to life without parole is inconsistent with evolving standards of decency. It noted that Graham only prohibited life without parole for nonhomicide offenses and that Roper prohibited capital punishment of juveniles. But neither case directly addressed the constitutionality of a sentence of life imprisonment without parole for an intentional homicide.
The Wisconsin court evaluated whether there is a national consensus against sentencing minors to life without parole for intentional homicides. It found that forty-four states allow life imprisonment without parole for homicide offenses for juveniles. Moreover, although few juveniles age fourteen or younger have ever been sentenced to life without a possibility of parole, the court concluded that the statistic did not necessarily show there was a consensus against such a penalty. In summary, the court concluded that there is no national consensus against a sentence of life imprisonment without parole for an intentional homicide committed by a minor.
In addition to our review of any national consensus, we also have a responsibility to exercise our independent judgment regarding whether an adult sentence for a minor convicted of murder serves legitimate penological goals. The research that Gray relies on suggests that some minors may have a greater potential for rehabilitation and that there is a lesser need to isolate them to protect the public. This is consistent with our previous recognition that rehabilitation and individual deterrence should be accorded “careful scrutiny and appropriate weight” in cases involving youthful first offenders convicted of first-degree murder.
But a lengthy sentence for the crime of murder promotes other goals. A lengthy sentence affirms the important community norms that protect the value of a human life. And a lengthy sentence can serve as an important deterrent to potential homicide offenders, even when the offenders are juveniles.
Several other courts considering the question have distinguished Graham and held that a life sentence can be imposed on a juvenile convicted of murder without violating the ban on cruel and unusual punishment. We conclude that sentencing a minor to an adult sentence for first-degree murder is not categorically unconstitutional.
[Moreover,] Gray did not receive a life sentence; she received a sentence of only sixty-five years’ imprisonment. She will be eligible for discretionary parole after serving twenty-five years of her sentence. But Gray argues that this sentencing scheme involves cruel and unusual punishment because it does not allow for early eligibility for discretionary parole.
As noted above, the combination of the automatic waiver statute and the adult sentencing statutes promotes various penological goals, especially the goals of general deterrence and affirmation of societal norms. In view of these legitimate legislative considerations, we conclude that the difficulty in applying the goals of rehabilitation and isolation to a juvenile offender does not render this scheme unconstitutionally cruel. The legislature could reasonably determine that, when a minor is convicted of first-degree murder, general sentencing considerations require a substantial delay before the minor becomes eligible for discretionary parole. This aspect of the operation of the automatic waiver statute does not constitute cruel and unusual punishment.
[…]
Conclusion
We AFFIRM the superior court’s judgment and sentence.
Disproportionate Punishment Under Three-Strikes Laws
Under the Eighth Amendment, the criminal penalties should generally be graded and matched to the severity of the convicted offense. Yet, in an effort to be “tough-on-crime” several states have enacted “three strikes and you’re out” statutes. Three-strikes statutes punish habitual offenders more harshly when they commit a second or third felony after an initial serious or violent felony. California was the first state to enact a “three strikes and you’re out” law. See Cal. Penal Code § 667. And it remains one of the toughest in the nation; it mandates a minimum twenty-five-year to life sentence for felons convicted of a third strike.
Not all three-strikes statutes are created equal. For example, Alaska’s three-strikes statute only applies to offenders who are convicted of a very serious felony and have been convicted of two prior very serious felonies. AS 12.55.125(l). If convicted of a third very serious felony, the offender faces a mandatory 99-year prison term; the sentencing judge has no discretion to reduce the term of imprisonment. AS 12.55.125.
Although Alaska’s three-strikes statute has not been challenged, other three-strikes statutes have been attacked as disproportionate to the convicted offense. This is especially true when the offender’s third felony is a nonviolent felony. However, the US Supreme Court has upheld three-strikes statutes even for relatively minor third offenses, holding that they are not cruel and unusual punishment under the Eighth Amendment. See Ewing v. California, 538 U.S. 11 (2003).
Figure 3.9 The Eighth Amendment
Sentencing that Violates the Right to a Jury Trial
One final aspect of sentencing is the constitutional role of the criminal jury pursuant to the Sixth Amendment. Although a detailed discussion of sentencing procedure is beyond the scope of this book, a brief overview of sentencing and the roles of the judge and jury is necessary to a fundamental understanding of this important trial right.
The Role of the Judge and Jury in Sentencing Fact-Finding
Recall that before a defendant may be found guilty of a criminal offense, the government must prove all essential elements to the trier of fact beyond a reasonable doubt. If the government fails to prove an essential element beyond a reasonable doubt, the Constitution requires that the accused be acquitted. The trier of fact in a criminal prosecution is almost always a jury because of the fundamental right to a jury trial guaranteed by the Sixth Amendment. Occasionally, the parties agree to waive a jury trial and the judge, acting as the trier of fact, conducts a bench trial.
Whereas the jury determines guilt, the judge generally determines the appropriate sentence. As discussed above, the death penalty is an exception. In death penalty cases, the jury must decide whether to impose the death penalty during the sentencing phase after the guilt phase has concluded.
Generally speaking, the purpose of criminal sentencing is for the judge to impose a criminal sanction taking into account the unique facts of the crime and the unique circumstances of the offender. Criminal sentencing, by design, is an inclusive process, requiring the sentencing judge to consider multiple different factors. To be fair and just, criminal sentencing must be individualized.
For this reason, until recently, judges have had almost exclusive control of sentencing. The judge was entitled to receive new evidence at sentencing if it was relevant. For example, a judge was permitted to determine if the defendant used a weapon when committing an armed robbery even if the jury did not consider the question. The judge was also entitled to determine a defendant’s prior criminal history for purposes of sentencing enhancement or a three-strikes statute.
Beginning in 2000, the US Supreme Court began expanding the role of the jury in sentencing, finding that a defendant’s Sixth Amendment right to a jury trial limited what a judge could consider unless proven beyond a reasonable doubt to a jury.
Sentencing Enhancement by Judges
Beginning in 2000, in the case of Apprendi v. New Jersey, 530 U.S. 466 (2000), the US Supreme Court held that before a judge could exceed a sentence beyond the statutory maximum the jury must determine the disputed facts beyond a reasonable doubt. In Apprendi, the trial court enhanced the defendant’s sentence beyond the statutory maximum for felon-in-possession under New Jersey’s hate crimes statute. Although the jury did not determine that the defendant’s crime was a hate crime, the sentencing judge relied upon new evidence introduced at sentencing that indicated the defendant’s shooting into a residence was racially motivated. The US Supreme Court reversed the conviction, noting that the defendant had the constitutional right to have the trial jury – not the sentencing judge – determine the operative facts that enhanced a sentence beyond the statutory maximum. The Court held that the one exception to this rule was evidence of a prior conviction, which could be determined by a sentencing judge.
Following Apprendi, the US Supreme Court struck down the mandatory US Sentencing Guidelines, which permitted judges to enhance an offender’s sentence with the statutory guideline using the preponderance of evidence standard. See U.S. v. Booker, 543 U.S. 220 (2005). In Booker, the Court ruled that the US Sentencing Guidelines are advisory only, and never mandatory. Booker was based on Blakely v. Washington, 542 U.S. 296 (2004), which invalidated a similar Washington State sentencing procedure. The same analysis applies to statutory mandatory minimum sentences. See Alleyne v. U.S., 570 U.S. 99 (2013).
Pursuant to this line of cases, a criminal defendant is entitled to a jury determination on any operative fact that could be used to enhance the defendant’s sentence beyond the statutory maximum. The only exception to the rule is criminal history – the sentencing judge is entitled to determine an offender’s criminal history; the jury need not determine an offender’s criminal history.
1. For more information see generally, Death Penalty Information Center, http://deathpenaltyinfo.org (last visited May 27, 2021). | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/03%3A_Constitutional_Protections/3.06%3A_Excessive_Punishment.txt |
Summary
The US Constitution places limits on the acts that the government can criminalize. The Alaska Constitution usually mirrors the federal constitution, but has been interpreted to provide more protection to criminal defendants than the federal constitution. Statutes can be unconstitutional as written or as enforced. All criminal laws must be supported by a sufficient government interest, which is closely examined when it implicates a fundamental right. Statutes that punish without a trial (bills of attainder) or criminal statutes that are applied retroactively (ex post facto) are unconstitutional. Other constitutional protections are in the Bill of Rights, which is the first ten amendments, and the Fourteenth Amendment, which contains the due process clause and the equal protection clause.
The concept of due process guarantees a fair process before the government deprives a person of a liberty interest. Similarly, it prohibits arbitrary and capacious laws. Statutes that are vague or criminalize constitutionally protected conduct violate due process. The Fifth Amendment due process clause applies to the federal government; the Fourteenth Amendment due process clause applies to the states. The Fourteenth Amendment due process clause also selectively incorporates fundamental rights from the Bill of Rights and applies them to the states. Most, but not all, of the rights guaranteed by the Bills of Rights have been incorporated under the doctrine of selective incorporation. The Fourteenth Amendment also contains the equal protection clause, which prevents the government from enacting statutes that discriminate without a sufficient government interest.
The First Amendment protects speech, expression, and expressive conduct from being criminalized without a compelling government interest and a narrowly tailored statute using the least restrictive means possible. Some exceptions to the First Amendment are precise statutes targeting fighting words, incitement to riot, hate crimes, obscenity, and nude dancing.
The First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments also create a federal right to privacy that prevents the government from criminalizing the use of birth control, abortion, or consensual sexual relations. The Alaska Constitution contains an explicit right to privacy.
The Second Amendment protects an individual’s right to possess firearms, particularly in the home for self-defense. This right does not extend to convicted felons, the mentally ill, commercial sale of firearms, and firearm possession near schools and government buildings.
The Eighth Amendment protects criminal defendants from inhumane and excessive punishments. The Sixth Amendment ensures that all facts used to extend a criminal defendant’s sentencing beyond the statutory maximum must be determined by a jury beyond a reasonable doubt.
Key Takeaways
• The Constitution protects individuals from certain statutes and certain governmental procedures.
• A statute is unconstitutional on its face when its wording is unconstitutional. A statute is unconstitutional as applied when its enforcement is unconstitutional.
• A court reviews a statute for constitutionality using strict scrutiny if the statute inhibits a fundamental constitutional right. Strict scrutiny means that the government must show that it is supported by a compelling government interest and uses the least restrictive means. A statute reviewed under the rational basis test requires the statute to be rationally related to a legitimate government interest.
• A bill of attainder is when the legislative branch punishes a defendant without a trial. Ex post facto laws punish criminal defendants retroactively.
• Ex post facto laws punish defendants for acts that were not criminal when committed, increase the punishment for a crime retroactively, or increase the chance of criminal conviction retroactively.
• The Bill of Rights is the first ten amendments to the Constitution and contains many protections for criminal defendants.
• Selective incorporation applies most of the constitutional protections in the Bill of Rights to the states.
• Substantive due process protects criminal defendants from unreasonable government intrusion on their substantive constitutional rights. Procedural due process provides criminal defendants with notice and an opportunity to be heard before the imposition of a criminal punishment.
• A statute that is void for vagueness is so imprecisely worded that it gives too much discretion to law enforcement, is unevenly applied, and does not provide notice of what is criminal. An overbroad statute includes constitutionally protected conduct and therefore unreasonably encroaches upon individual rights.
• The equal protection clause prevents the state government from enacting criminal laws that arbitrarily discriminate. The Fifth Amendment due process clause extends this prohibition to the federal government if the discrimination violates due process of law.
• Speech under the First Amendment is any form of expression, such as verbal or written words, pictures, videos, and songs. Expressive conduct, such as dressing a certain way, flag burning, and cross burning, is also considered First Amendment speech.
• Five types of speech that can be governmentally regulated are fighting words, incitement to riot, hate speech, obscenity, and nude dancing.
• Statutes that prohibit fighting words and incitement to riot must be narrowly drafted to include only speech that incites imminent unlawful action, not future harm or general advocacy. Statutes that prohibit hate speech must be narrowly drafted to include only speech that is supported by the intent to intimidate. Statutes that prohibit obscenity must target speech that appeals to a prurient interest in sex, depicts sexual conduct in a patently offensive way, and has little or no literary, artistic, political, or scientific value. Nude dancing can be regulated as long as the regulation is reasonable, such as requiring dancers to wear pasties and a g-string.
• The constitutional amendments supporting a federal right to privacy are the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments.
• The federal right to privacy protects an individual’s right to use contraceptives, to receive an abortion through the first trimester, and to engage in consensual sexual relations.
• The Alaska Constitution contains an explicit right to privacy.
• Pursuant to recent US Supreme Court precedent, the Second Amendment protects an individual’s right to possess a firearm in the home for self-defense. This protection does not cover felons, the mentally ill, firearm possession near schools and government buildings, or the commercial sale of firearms.
• An inhumane procedure punishes a defendant too severely for any crime. A disproportionate punishment punishes a defendant too severely for the crime he or she committed.
• Criminal homicide is the only crime against an individual that merits capital punishment.
• Criminal defendants who were juveniles when the crime was committed, are mentally incompetent, or have an intellectual disability cannot be subjected to capital punishment.
• Juveniles must be treated differently when imposing severe sentences. Youth matters in sentencing.
• Three-strikes laws punish criminal defendants more severely for committing a felony after they have committed one or two serious felonies. Three-strikes laws have been held constitutional under the Eighth Amendment, even when they levy long prison sentences for relatively minor felonies.
• Sentencing enhancements beyond the statutory maximum are unconstitutional unless they are based on facts determined by a jury beyond a reasonable doubt under the Sixth Amendment right to a jury trial.
Answers to Exercises
From “Right to Privacy”:
1. The Court noted that convicted sex offenders have a protected right of privacy under the Alaska Constitution, which must be balanced against the government’s interest in protecting the public from convicted sex offenders.
2. The Court found that the ASORA was unconstitutional and violated the Alaska Constitution unless the government provides the convicted sex offenders a fair procedure in which they can demonstrate that they are not dangerous. Without this safety valve, the ASORA statutory scheme violated substantive due process.
From “Right to Bear Arms”:
1. A reviewing court would likely uphold the constitutionality of the statute. As with all constitutional challenges, a reviewing court must balance a person’s individual right against the government’s interest in the health and safety of its citizens. Here, the state’s interest in public safety outweighs the defendant’s right to bear arms. The felon-in-possession law bears a “close and substantial relationship to the state’s legitimate interest in protecting the health and safety of its citizens.” The distinction between violent and non-violent is irrelevant. This hypothetical is based on the case of Wilson v. State, 207 P.3d 565 (Alaska App. 2009), which provides a fascinating discussion about how an appellate court interprets Alaska’s constitutional “right to bear arms.” The opinion is available through the Consortium Library at the University of Alaska Anchorage using your student credentials.
2. The court will uphold the order under the Second Amendment if the defendant was convicted of a felony and ordered to felony probation. Recent US Supreme Court precedent (Heller and McDonald) both expressly exclude convicted felons from their holdings. However, if the defendant was only convicted of a misdemeanor, then the court would have to determine whether Heller and McDonald extend the Second Amendment’s right to possess a firearm for self-defense to a convicted police officer who wants to resume their career. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/03%3A_Constitutional_Protections/3.07%3A_End-of-Chapter_Material.txt |
All crimes can be broken down into discrete elements. The prosecution must prove each essential element beyond a reasonable doubt. Criminal elements are set forth in criminal statutes or in case law, depending on the jurisdiction.
With few exceptions, every crime has five elements:
1. a criminal act or omission, also called actus reus;
2. a culpable mental state, also called the mens rea;
3. the concurrence of the two;
4. causation; and
5. a resulting harm.
If a person engages in conduct that is lacking one of the above essential elements, the person has not committed a criminal offense. There is one big exception to this general rule: inchoate offenses, also known as anticipatory offenses. Inchoate offenses do not have causation and harm elements. We will explore anticipatory offenses in more detail in Chapter 6 “Inchoate Offenses.”
Example of a Crime That Only Has Three Elements
Janine gets into a fight with her boyfriend Conrad after the senior prom. She grabs Conrad’s car keys out of his hand, jumps into his car, and locks all the doors. As Conrad runs towards the car, Janine yells out the window, “I’m going to kill you!” Janine starts the car, puts it into drive, and tries to run Conrad over. It is dark and difficult for Janine to see, so Conrad easily jumps out of the way and is unharmed. Shortly thereafter, Janine is arrested and charged with attempted murder. In this case, the prosecution only has to prove three elements: (1) criminal act, (2) culpable mental state, and (3) concurrence. Attempted murder is an inchoate offense and only has three elements. The prosecution does not have to prove causation or that Conrad was harmed because attempt crimes, including attempted murder, do not require a resulting harm. Incomplete crimes, like attempt, are referred to as inchoate crimes.
Nearly every state codifies the minimum requirements of criminal liability. Take a look at Alaska Statute 11.81.600.
Figure 4.1 Alaska Criminal Code
Notice that the statute omits causation and harm from the minimum requirements of criminal liability. Also, the term conduct is used to reflect concurrence: the combination of the criminal act and criminal intent elements. As the statute explains, “‘conduct’ means an action or omission and its accompanying state of mind.” See AS 11.81.900(b)(7).
Another requirement of some crimes is the existence or non-existence of an attendant circumstance. Attendant circumstances are specific factors that must be present when the crime is committed to constitute the enumerated crime. These circumstances could include the crime’s instrumentality, its methodology, location, or victim characteristics. A crime’s attendant circumstances will always be included in the criminal statute and is often used as a basis for grading a particular family of offenses. An example of grading is Alaska’s robbery statutes. Alaska law grades first-degree robbery as a more serious offense than second-degree robbery. Compare AS 11.41.500 and 11.41.510. First-degree robbery is a class A felony, whereas second-degree robbery is a class B felony. The applicable punishment range between the two is significant.
Example of a Crime with an Attendant Circumstance
Sally is low on money and decides to rob her local bank. To ensure success, she arms herself with a handgun. Sally walks into the bank, approaches the nearest teller, and points the gun at the teller. Sally demands all of the bank’s money. Unbeknownst to Sally, the bank teller activated the silent alarm. Sally is arrested by the police as she walks out. Sally is charged with Robbery in the Frist Degree, which requires the government to prove that she obtained property of another through the threat of force while armed with a deadly weapon. Sally’s pistol (a deadly weapon) is an attendant circumstance for purposes of the robbery statute. A person who commits a robbery without a deadly weapon is only guilty of Robbery in the Second Degree, a lesser offense.
This chapter analyzes the five essential elements contained within every crime. Subsequent chapters will analyze the elements of specific crimes. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/04%3A_The_Elements_of_a_Crime/4.01%3A_Criminal_Elements.txt |
The majority of the time, the criminalact, or actus reus, is defined as a voluntary and conscious bodily movement. Remember, the criminal law generally punishes prohibited acts. In some circumstances however, the criminal act is defined as an omission to act. When the law criminalizes a person’s failure to act, the law requires the person to be informed of their duty.
The Requirement of Voluntariness
The criminal act must be performed voluntarily. Involuntary acts cannot form the basis of criminal liability. Alaska law describes a voluntary act as “[a] bodily movement performed consciously as a result of effort and determination.” AS 11.81.900(b)(66). In other words, the defendant must consciously control the action. Involuntary acts such as reflexes, convulsions, bodily movements during unconsciousness or sleep, or movements during hypnosis are excluded. See generally Model Penal Code § 2.01 (2). Involuntary acts, for purposes of the actus reus, do not include compelled or coerced acts. Such “involuntary acts” may excuse a person’s criminal behavior, but are “voluntary” for purposes of the criminal act.
Example of an Involuntary Act
Perry is hypnotized at the local county fair. The hypnotist directs Perry to smash a banana cream pie into his girlfriend Shelley’s face. Smashing a pie into a person’s face without their consent is likely misdemeanor assault. However, since Perry did not commit the act voluntarily he should not be convicted of a crime. Punishing Perry for assault serves little societal interest given he was not in control of his behavior. No punishment would change Perry’s, or others, behavior in the future.
Purpose of the Criminal Act
Voluntariness serves an important penological purpose. The belief that criminals must be able to avoid criminal punishment is a central purpose of the criminal justice system. Criminalizing involuntary actions fails to achieve this purpose. However, only one voluntary actis enough to fulfill the actus reus. If a voluntary act is followed by an involuntaryone, the law will impose criminal liability.
Example of a Voluntary Act followed by an Involuntary Act
Timothy attends a party at a friend’s house and consumes several glasses of red wine. Timothy then drives home. While driving, Timothy passes out at the wheel and hits another vehicle, killing the other driver. Timothy is likely guilty of manslaughter. Timothy’s acts of drinking several glasses of wine and then driving were voluntary. Even though Timothy caused the collision while unconscious (an involuntary act), his involuntary act was preceded by conscious, controllable, and voluntary action.
Wagner v. State, 390 P.3d 1179 (Alaska App. 2017)
As you will see, recognizing the difference between a voluntary act and one’s culpable mental state can be difficult. The following case explores the situation when a person may not know that their voluntary action will lead to an involuntary action. As you read Wagner, ask yourself whether it is fair to hold Wagner responsible in such a situation. Does the Court’s ruling achieve the penological purpose discussed above?
390 P.3d 1179
Court of Appeals of Alaska.
Richard Laverne WAGNER Jr., Appellant,
v.
STATE of Alaska, Appellee.
Court of Appeals No. A-11682
January 27, 2017
OPINION
Judge MANNHEIMER.
In the early morning of August 23, 2011, Richard Laverne Wagner Jr. came to the end of a street, failed to stop, and drove his van into a tree. When the police arrived, Wagner told the officers that he had recently dropped off some out-of-town relatives at their hotel, and that he had then taken some medications and started driving home. Wagner told the officers that, when he came to the end of the street, he attempted to apply his brakes, but he mistakenly pressed the accelerator instead.
Later, however, Wagner changed his story: he told the police that all he remembered was being in his home, and then the next thing he remembered was striking the tree.
Because Wagner admitted drinking and smoking marijuana, he was arrested for driving under the influence. His breath test showed a blood alcohol concentration of .066 percent—below the legal limit. Wagner then consented to a blood test. A subsequent chemical analysis of Wagner’s blood showed that he had consumed zolpidem—a sedative that was originally sold under the brand name Ambien, and is now available under several brand names.
Wagner was charged with driving under the influence and driving while his license was revoked.
At Wagner’s trial, his defense attorney elicited testimony (from the State’s expert witness) that one of the potential side effects of zolpidem is “sleep-driving”—i.e., driving a vehicle without being conscious of doing so.
During the defense case, Wagner took the stand and testified that he had been at home watching television, and then he took his medication and fell asleep. According to Wagner, the next thing he remembered was waking up when he hit the tree and his air bag deployed. Wagner asserted that he remembered nothing about getting into a motor vehicle and driving.
Based on this testimony, Wagner’s attorney asked the judge to instruct the jury that the State was required to prove that Wagner consciously drove the motor vehicle. More specifically, Wagner’s attorney asked the judge to give this instruction:
If you find that [Wagner] was under the effects of a prescription medication, [and] that he was not aware of those effects when he consumed the medication, and that he performed an otherwise criminal act while unconscious as a result of this medication, [then] you must find him not guilty of that criminal act.
The trial judge rejected this proposed instruction because the judge ruled that, if Wagner voluntarily took the medication, then Wagner could be found legally responsible for what ensued, even if he was not consciously driving at the time of the crash.
The jury convicted Wagner of both charges, and Wagner then filed this appeal.
Wagner’s primary claim on appeal is that the jury should have been instructed along the lines that Wagner’s attorney proposed—i.e., that if Wagner was sleep-driving, he should be acquitted.
The correct categorization of Wagner’s claim
Although the attorneys and the judge at Wagner’s trial discussed this issue in terms of mens rea—i.e., whether Wagner acted “knowingly” when he drove the motor vehicle—Wagner’s appellate attorney correctly recognizes that Wagner’s proposed defense was actually a claim that Wagner could not be held responsible for the actus reus of driving. Wagner does not claim that his act of driving was “unknowing”. Rather, he claims that his act of driving was “involuntary”.
Normally, a person can not be held criminally responsible for their conduct unless they have engaged in a voluntary act or omission. The term “voluntary act” is defined in AS 11.81.900(b)(66) as “a bodily movement performed consciously as a result of effort and determination”. As we explained in Mooney v. State, 105 P.3d 149, 154 (Alaska App. 2005), the criminal law defines “voluntary act” as a willed movement (or a willed refraining from action) “in the broadest sense of that term”.
But as we are about to explain, a voluntary act is not necessarily a “knowing” act, as that term is used in our criminal code.
Many criminal offenses require proof of a particular type of conduct—e.g., delivering a controlled substance to another person, or warning a fugitive felon of their impending discovery or apprehension. When a crime is defined this way, there will be circumstances when a defendant’s willed actions (their “voluntary” acts) will fit the statutory definition of the prohibited conduct, but the defendant will not have been aware that they were engaging in this defined type of conduct.
For instance, a mail carrier or other delivery person may deliver a letter or package without knowing that it contains a controlled substance. Or someone (a neighbor or a news reporter, for example) may unwittingly say or do something that tips off a fugitive felon to their impending discovery or apprehension. In these instances, the person will have performed a “voluntary act”, but they will not have “knowingly” engaged in the conduct specified in the statute.
This is not the kind of defense that Wagner wished to raise at his trial. Wagner’s attorney did not argue that, even though Wagner knew he was engaging in some form of action, Wagner somehow remained unaware that, by his actions, he was putting a motor vehicle into operation.
Rather than raising a defense of “unknowing” conduct, the defense attorney argued that Wagner did not engage in any conscious action—that Wagner was essentially asleep, and that he was unaware that he was engaged in activity of any kind. This was a claim of involuntariness.
Why we reverse Wagner’s conviction
In State v. Simpson, 53 P.3d 165 (Alaska App. 2002), this Court recognized that even though the voluntariness of a defendant’s conduct is rarely disputed, the requirement of a voluntary act is “an implicit element of all crimes”. Thus, “[i]f voluntariness is actively disputed, the government must prove it.” 53 P.3d at 169.
The criminal law’s concept of involuntariness includes instances where a defendant is rendered unconscious by conditions or circumstances beyond the defendant’s control, if the defendant neither knew nor had reason to anticipate this result. [citations omitted]
Compare Solomon v. State, 227 P.3d 461, 467 (Alaska App. 2010), where this Court ruled that defendants charged with driving under the influence can raise a defense of “unwitting intoxication” if the defendant made “a reasonable, non-negligent mistake concerning the intoxicating nature of the beverage or substance that they ingested”.
Having considered these authorities, […] we conclude Wagner would have a valid defense to the charges of driving under the influence and driving with a revoked license if (1) he took a prescription dose of zolpidem, (2) he was rendered unconscious by this drug and engaged in sleep-driving, and (3) he neither knew nor had reason to anticipate that the drug would have this effect.
[…]
Conclusion
The judgement of the superior Court REVERSED.
[NOTE: Judge Mannheimer, the author of the Wagner opinion authored several of the legal opinions reprinted in this this textbook. Judge Mannheimerintentionally uses the English version of the term “judgement” in his opinions. Its use is not a typographical error.]
Status as a Criminal Act
Generally, a defendant’s status in society is not a criminal act. Status is who the defendant is, not what the defendant does. Similar to punishment for an involuntary act, when the government punishes an individual for their status, the government is targeting an individual for circumstances that may be outside of his or her control. Punishing a person for their status – as opposed to their conduct – may constitute unconstitutional cruel and unusual punishment under certain circumstances.
In Robinson v. California, 370 U.S. 660 (1962), the US Supreme Court held that it is unconstitutional to punish an individual for their status of being a drug addict — even if the drugs themselves are illegal. The Court compared drug addiction to an illness, such as leprosy or venereal disease. Punishing a person for being sick is not only inhumane, but does not deter future criminal conduct. See id at 665-66.
Even though it is unconstitutional to punish a person for their status, the government is entitled to punish a person for their conduct. In Powell v. Texas, 392 U.S. 514 (1968), the US Supreme Court upheld the defendant’s conviction for being “drunk in public,” despite the defendant’s status as an alcoholic. The Court reasoned that a defendant may be convicted of “being drunk in public on a particular occasion” regardless of whether a person is an alcoholic. See id. at 532. Although it may be difficult for an alcoholic to resist the urge to drink, it is not impossible. Such behavior is voluntary. According to Powell, statutes that criminalize voluntary actsthat arisefrom status are constitutional.
Example of a Constitutional Statute Related to Status
In the previous example, Timothy drove home while intoxicated and killed another person. Assume that Timothy is an alcoholic and claims he cannot stop his drinking. Should Timothy be relieved of liability because he is an alcoholic? Holding Timothy criminally responsible for manslaughter is constitutional, irrespective of his alcoholism. Timothy was not punished for being an alcoholic; he was punished for driving while intoxicated and killing a person – a voluntary act. Timothy’s status as an alcoholic may make it more difficult for him to control his drinking, but it does not relieve him from criminal responsibility.
You be the Judge …
Boise, Idaho has a significant and increasing homeless population. Between 2014 and 2106, Boise’s homeless population increased by 15%, and by all accounts, continued to grow. The City of Boise has three homeless shelters, all run by private, nonprofit organizations. The shelters are frequently full and turn away individuals when a person suffering homelessness seeks shelter. In an effort to equitably distribute the shelter services, the three shelters limit the number of consecutive nights any single homeless person may stay at the shelter. To combat the persistence of homelessness, the City of Boise passed two ordinances that criminally punished the act of sleeping outside on public property, whether bare or with a blanket or other basic bedding. Both ordinances authorize a court to impose a monetary fine or jail if violated.
Susan is homeless and frequently relied on Boise’s shelters for housing. Although she has been staying at one of the local shelters, she was involuntarily discharged since she reached the shelter’s 17-day limit for guests. Because she could not go to a shelter, Susan slept in the downtown park. A Boise police officer arrested Susan for sleeping in the park “wrapped in blankets on the ground.” The court found Susan guilty and imposed one day in jail and a \$25 fine.
Is Susan’s conviction based on her status of being homeless or based on her voluntary act of sleeping outside? Check your answer using the answer key at the end of the chapter.
Possession as a Criminal Act
Possession, even though it is passive conduct, is still considered a criminal act. Nearly every jurisdiction criminalizes the possession of illegal contraband. The most common objects that are criminalized include drugs, weapons, or specific criminal tools (i.e., burglary tools). Possession frequently falls within one of several categories: active, constructive, joint, and fleeting possession.
Actual possession means the defendant has direct physical control, care, and management of a physical item. Generally, this means the item is on, or very near, the person. Constructive possession means that although the item is not on the defendant’s person, it is within the defendant’s area of control – that is, the defendant has the right or authority to exercise control or dominion over the item. Consider a person’s ‘possession’ of their house or automobile while the person is at work. Even though the person is not physically present at their home, the person has constructive possession over the items inside the home – that is, the person has the authority to control the item. Possession can also be sole or joint. Joint possession is when two or more people have actual or constructive possession over an item. Fleeting possession is generally not criminal. Fleeting possession is when a person physically possesses contraband innocently and momentarily, with the intent to turn the item over to the lawful authority (i.e., police). For example, if a person discovers discarded heroin on a sidewalk, the person could pick up the illegal drugs with the intention of delivering the it to law enforcement. If the person’s intention was genuinely innocent and momentary, the felon’s possession would be considered fleeting, and he would not be guilty of a crime. See e.g., Jordan v. State, 819 P.2d 39, 42-43 (Alaska App. 1991).
Momentary Possession Must be Truly Innocent
Crabtree and Baker were partners in a woodcutting business near Fairbanks. After Baker unsuccessfully tried to collect the \$180 that Crabtree owed him, Baker took Crabtree’s handgun. Baker immediately took the handgun to a local pawnshop, where he pawned the gun for \$135. While Baker was at the pawnshop, Crabtree called the police. When the police arrived, Baker explained that he was merely collecting on an outstanding debt and he had the gun for thirty minutes – the amount of time it took to drive from the business to the pawnshop. The police discovered Baker was a felon and charged him with one count of being a felon-in-possession of a firearm. AS 11.61.200(a)(1). A jury convicted him.
On appeal, Baker claimed that his possession was “fleeting” and that he only possessed the gun long enough to transport it to the pawnshop. The Court rejected Baker’s argument: “We are satisfied that the legislature did not intend to permit felons to possess prohibited weapons as collateral for debt, nor did it intend to immunize knowing possession of a weapon for the time necessary to pawn it. … [Baker] knowingly took [the gun] from Crabtree, pawned it, and retained the pawn ticket until he turned it over to the police. Under these circumstances, a reasonable jury could not find momentary or inadvertent possession of the handgun.” See Baker v. State, 781 P.2d 1368, 1369 (Alaska App. 1989).
Because possession can be either actual or constructive, both of which can be abstract concepts, courts have struggled to define when a person may be criminally liable for a possessory offense if the person merely has the ability or power to exercise control over an item versus whether the person did exercise the control over the item. The following case, Alex v. State, 127 P.3d 847 (Alaska App. 2006), is a great example of the dilemma surrounding possession.
Alex v. State, 127 P.3d 847 (Alaska App. 2006)
127 P.3d 847
Court of Appeals of Alaska.
Timothy G. ALEX, Appellant,
v.
STATE of Alaska, Appellee.
No. A–8839.
Jan. 13, 2006.
Rehearing Denied Feb. 16, 2006.
OPINION
MANNHEIMER, Judge.
Timothy G. Alex was convicted of weapons offenses after the police recovered a pistol from under the passenger seat of the vehicle in which Alex was riding. At trial, Alex claimed that he had no idea that the pistol was there.
Toward the close of the trial, Alex’s trial judge proposed to instruct the jury that a person is in “constructive possession” of an item if the person has “the power to exercise dominion or control” over that item. Alex’s defense attorney argued that proof of a person’s power to exert dominion or control over an object was not enough—that the State was also obliged to prove that the person actually exercised this power, or at least intended to exercise it. After listening to the defense attorney’s argument, the trial judge decided not to alter the wording of the jury instruction. In this appeal, Alex renews his contention that the instruction, as given, was an erroneous statement of the law.
It is not clear that this case even raises an issue of constructive possession. As we explain in more detail below, the item in question—a semi-automatic assault pistol—was found underneath the passenger seat of the vehicle in which Alex was riding (as the passenger). It would therefore appear that, if Alex indeed possessed this pistol, he had actual possession of it, not “constructive” possession.
The fact that the parties to this appeal have framed the issue in terms of “constructive possession” may stem from the fact that this concept suffers from a lack of precision. As the United States Supreme Court has noted, the two concepts of “actual” possession and “constructive” possession “often so shade into one another that it is difficult to say where one ends and the other begins”. Indeed, some legal commentators have suggested that the words employed in Alex’s case to define constructive possession—“dominion” and “control”—do not really provide a workable definition of this concept; rather, these words “are nothing more than labels used by courts to characterize given sets of facts”.
There is, in fact, some case law to support Alex’s contention that a person should not be convicted of constructively possessing an object merely because the person could have exercised dominion or control over the object—that the government must also prove either that the person did exercise dominion or control over the object, or at least intended to do so.
However, because of the way Alex’s case was litigated, we are convinced that the jury’s decision did not turn on this distinction. As we explain here, the jury’s verdicts demonstrate that the jurors must have concluded, not only that Alex knew about the pistol under his seat, but also that Alex possessed that pistol[.] Thus, even assuming that the jury instruction on “constructive possession” should have expressly required proof that Alex had already exercised dominion or control over the pistol, or that he intended to do so, this error had no effect on the jury’s decision. We accordingly affirm Alex’s conviction.
Underlying facts
On the afternoon of December 14, 2002, Anchorage Police Officer Leonard Torres made a traffic stop of a vehicle. When Torres asked to see the vehicle registration, the driver, Darryl Wilson, told the passenger, Timothy Alex, to retrieve the registration from the glove compartment. Torres moved to the passenger side of the vehicle so that he could “see … what [Alex] was reaching for in the glove compartment”. When he did so, Torres observed that Alex had an open bottle of beer between his legs.
Wilson, too, had apparently been drinking. Moreover, when Torres ran Wilson’s and Alex’s names through the computer, he learned that both men were on felony probation. Torres called for backup.
Torres focused his attention on Wilson while two backup officers, Kevin Armstrong and Jeff Carson, asked Alex to step outside the vehicle. During their conversation with Alex, one of the officers asked if there were any firearms in the vehicle. Alex told the officers that there was a firearm under the passenger seat. Carson looked on the floor of the vehicle, underneath where Alex had been sitting, and discovered a “Tec 9” (i.e., an Intratec DC–9, a 9–mm semi-automatic assault pistol).
Because Alex was a convicted felon, he was prohibited from possessing a concealable firearm.
[…]
Based on these events, Alex was indicted for … third-degree weapons misconduct (possession of a concealable firearm by a felon).
Alex did not testify at his trial. However, Alex’s attorney elicited testimony (during cross-examination of the police officers) that (1) both Wilson and Alex told the police that the Tec–9 pistol belonged to the owner of the vehicle, a man named Earl Smith, and that (2) when the police spoke to Earl Smith about this weapon, he confirmed that the Tec–9 pistol did, in fact, belong to him. Indeed, Smith declared that he had never told Wilson and Alex that there was a pistol in the vehicle.
[…]
At the end of the trial, during the defense summation, Alex’s attorney told the jury that Smith’s account was truthful: that the pistol belonged to Smith, and that Alex had not known that the pistol was in the vehicle.
The defense attorney acknowledged that two police officers (Armstrong and Carson) had testified that Alex did know about the pistol—that, in fact, Alex told them that the weapon was present in the vehicle, and that he disclosed the weapon’s location under the passenger seat. But the defense attorney told the jurors that the officers were lying—that the officers were saying this only because they knew that the State’s “whole case” depended on the argument that Alex must have knowingly possessed the weapon “because he knew it was there”.
The defense attorney repeatedly declared that the jurors should disbelieve the officers’ testimony on this point. She told the jurors: “Look at the foundation of [Alex’s] alleged confession [that there was gun underneath the seat]. Look at the root of that information. It’s tainted; it’s skewed; it’s biased; it’s untrustworthy.” A few moments later, she told the jurors: “We have the shadiest confession, completely untrustworthy.”
A little later in her summation, the defense attorney returned to this theme. She told the jurors that, because Alex was merely a passenger in the car (not the owner of the vehicle, and not the driver), the police must have known that they could not charge and convict Alex of the weapons offenses unless they had a confession—i.e., Alex’s admission that he knew that the pistol was under his seat.
Defense Attorney: So they [purportedly] get [the needed confession]. [But] did they? I don’t know. Do you know? I would think not.
[The police] call[ed] Mr. Earl Smith [to ask him about the gun]. And … what did Mr. Earl Smith say? “That’s my gun. [Wilson and Alex] don’t know that it’s in there.”
These arguments proved unavailing; the jury convicted Alex of the [weapon offense].
[…]
The potential problem with the definition of “constructive possession”, and why we conclude that any error was harmless
In retrospect (and after briefing), it is easier to see the potential problem caused by including the words “have the power to” in the definition of “constructive possession”.
[…]
Alaska cases have never directly addressed [the definition of constructive possession]. In [a prior opinion], the Alaska Supreme Court declared that “possession” was “a common term with a generally accepted meaning: having or holding property in one’s power; the exercise of dominion over property.” But the supreme court may have been overly optimistic when it declared that “possession” had a common, generally accepted meaning.
There is an ambiguity in the word “power”. This word can refer to a person’s right or authority to exert control, but it can also refer to anything a person might be physically capable of doing if not impeded by countervailing force. Thus, if “constructive possession” is defined as the “power” to exercise dominion or control over an object, this definition potentially poses problems—because it suggests that a person could be convicted of possessing contraband merely because the person knew of the contraband and had physical access to it, even though the person had no intention or right to exercise control over it.
For example, the children of a household might know that there is beer in the refrigerator or liquor in the cupboard. Assuming that it is within the children’s physical power to gain access to these alcoholic beverages, one might argue that the children are in “constructive possession” of these beverages—and thus guilty of a crime [of] minor in possession of alcoholic beverages – because the children have “the power to exercise dominion or control” over the beverages.
To avoid results like this, some courts have worded their definitions of “constructive possession” in terms of a person’s “authority” or “right” to exert control over the item in question. … Other courts have worded the test as the defendant’s “power and intention ” to exert control or dominion over the object.
This same type of problem might have arisen in Alex’s case if the case had been litigated differently. For example, given the facts of the case, one can imagine Alex conceding that he was aware of the pistol under his seat, but then asserting that he had no connection to the pistol and that he only became aware of its presence underneath his seat when, during his ride in the vehicle, the pistol bumped against his feet.
But this was not the strategy that Alex’s defense attorney adopted at trial. Instead of conceding that Alex knew that there was a pistol under his seat, Alex’s attorney denied that Alex knew about the pistol, and further denied that Alex had ever said anything to the police about the weapon. The defense attorney relied on Earl Smith’s statement that Alex and Wilson did not know that there was a firearm in the vehicle, and the attorney argued that the police officers had lied when they testified that Alex directed them to the weapon.
[…]
Given this defense, it is unlikely that the claimed ambiguity or error in the jury instruction defining “constructive possession” affected the jury’s decision—because the alleged flaw in the jury instruction would make a difference only if Alex conceded that he was aware of the assault pistol under his seat.
[…]
Conclusion
As we have explained here, Alex’s brief to this Court identifies a potential problem in the wording of the “constructive possession” instruction that was given at his trial. … But … we conclude that this potential problem in the wording of the jury instruction had no effect on the jury’s verdicts. Accordingly, the judgement of the superior court is AFFIRMED.
The More You Know …
In response to the dilemma highlighted in Alex v. State, Law Professor Chad Flanders argues that Alaska judges should view actual and constructive possession as separate and distinct concepts and not along a continuum. Actual possession includes both current and past physical possession. A person is in actual possession of an item if they have the item on their person or if they had previously possessed the item. Past physical possession is still actual possession (not constructive possession). Constructive possession, on the other hand, should be reserved for those cases where the person has not physically possessed the item but has a legal right (or a functional equivalent) over the item. In the end, Professor Flanders proposes a new “possession” jury instruction to address this problem.
The law recognizes two kinds of possession: actual possession and constructive possession. Actual possession means to have direct physical control, care, or management of a thing. Actual possession does not have to be current possession; it is enough for actual possession to show that the defendant recently had physical control, care, and management over the item.
A person not in actual possession may have constructive possession of an item. Constructive possession means to have ownership of an item, or power and authority over that item or over a place where that item is such that one can without difficulty or opposition reduce it to one’s direct physical control.
See id at 21.
Professor Flanders provides several good examples and explanations of these issues in C. Flanders, “Actual” and “Constructive” Possession in Alaska: Clarifying the Doctrine, 36 Alaska L. Rev. 1 (2019). The article is available via Westlaw Campus Research through the University of Alaska Anchorage Consortium Library using your student UA credentials.
Omission to Act
Generally speaking, the law does not impose criminal liability on a person’s failure to act. Under the American Bystander Rule, a person has no responsibility to rescue or summon aid for another person who is in danger, even though society may recognize a moral obligation to intervene. “Thus, an Olympic swimmer may be deemed by the community as a shameful coward, or worse, for not rescuing a drowning child in the neighbor’s pool, but she is not a criminal.” See State ex. rel. Kuntz v. Montana Thirteenth Judicial District Court, 995 P.2d 951, 955 (Mont. 2000). Prosecuting individuals for failing to act is rare since the government is reluctant to compel individuals to put themselves in harm’s way and such circumstances are difficult to legislate.
The American Bystander Rule is not without exceptions. Criminal liability may be imposed for voluntary omissions to act if the law imposes a duty to act. This legal duty becomes an element of the crime, which the prosecution must prove beyond a reasonable doubt, along with the circumstances of the defendant’s inaction. Failure to act is criminal in only four situations: (1) when there is a statute that creates a legal duty to act, (2) when there is a special relationship between the parties that creates a legal duty to act, (3) when there is a contract that creates a legal duty to act, or (4) when a person has assumed a duty by voluntarily intervening in a situation to assist another person. See e.g., Sickel v. State, 363 P.3d 115 (Alaska App. 2015). Precise legal duties to act vary from jurisdiction to jurisdiction.
Some states have superseded the general rule by enacting Good Samaritan statutes that create a duty to assist those involved in an accident or emergency situation. Good Samaritan statutes typically contain provisions that insulate the actor from civil liability when providing assistance. See generally Minn. Stat. §604A.01 (2001).
Figure 4.2 Minnesota Good Samaritan Law
Duty to Act Based on a Statute
When a duty to act is statutory, it usually concerns a paramount government interest. Some common examples include the duty to file state or federal tax returns, the duty of certain healthcare personnel to report specific injuries, and the duty to report suspected child abuse. For example, Alaska obligates public and private school teachers to report cases of suspected child abuse to the Office of Child Services (OCS) or law enforcement. AS 47.17.020. School teachers who fail to report cases of suspected abuse are guilty of a Class A misdemeanor, punishable by up to one year in jail. AS 47.17.068.
Figure 4.3 Alaska Criminal Code
Duty to Act Based on a Special Relationship
A special relationship may also create a legal duty to act. The most common special relationships are parent-child, spouse-spouse, and employer-employee. Often, the rationale for creating a legal duty to act when people are in a special relationship is the dependence of one individual on another. Irrespective of the moral obligation a parent may have towards their child, the criminal law imposes a legal obligation to provide food, clothing, shelter, and medical care since the child is dependent on their parents for their basic needs. Children do not have the ability to protect themselves, and as we will see in Michael v. State, 767 P.2d 193 (Alaska App. 1998) reversed on other grounds 805 P.2d 371 (Alaska 1991), parents can be held criminally liable for failing to protect their children from harm.
Duty to Act Based on a Contract
A duty to act can be based on a contract between the defendant and another party. The most prevalent examples would be a physician’s contractual duty to help a patient or a lifeguard’s duty to save someone who is drowning. Keep in mind that experts who are not contractually bound can ignore an individual’s pleas for help without committing a crime, no matter how morally abhorrent that may seem. Remember, an Olympic swimmer can watch someone drown if there is no statute, contract, or special relationship that creates a legal duty to act, but if the Olympic swimmer is employed as a lifeguard, criminal liability may attach.
Duty to Act Based on the Assumption of Duty
Criminal liability may attach if a person fails to continue to provide aid, once assistance has started. Similar to the duty based on a special relationship, the duty to continue to provide aid is rooted in the person’s assumption of the victim’s care and the victim’s continued dependence. It is unlikely that another person will come along to help once the defendant has begun providing assistance. For example, a driver who picks up an injured person on the street, with the intent of taking them to the hospital, may be criminally liable if the driver changes his mind and leaves the person somewhere other than the hospital. See generally U.S. v. Hataley, 130 F.3d 1399, 1406 (10th Cir. 1997).
Example of a Failure to Act That Is Noncriminal
Recall the example where Clara and Linda are shopping together and Clara stands by and watches Linda put a bra in her purse without paying for it. In this example, Clara does not have a duty to report Linda for shoplifting. Clara does not have a contractual duty to report a crime because she is not a store security guard obligated by an employment contract. Nor does she have a special relationship with the store mandating such a report. Unless a statute or ordinance exists to force individuals to report crimes committed in their presence, which is extremely unlikely, Clara can legally observe Linda’s shoplifting without reporting it. Of course, if Clara assists Linda with the shoplifting, she is likely criminally accountable for Linda’s criminal conduct, but we’ll discuss accountability in Chapter 5, “Parties to Crimes.”
Example of a Failure to Act That Is Criminal
Penelope stands on the shore at a public beach and watches as a child drowns. If Penelope’s state had a Good Samaritan law, she may have a duty to help the child based on a statute. If Penelope is the lifeguard, she may have a duty to save the child based on a contract. If Penelope is the child’s mother, she may have a duty to provide assistance based on their special relationship. If Penelope began to rescue the child in the ocean, she may have a duty to continue her rescue. If Penelope is just a bystander, and no Good Samaritan law is in force, she has no duty to act and cannot be criminally prosecuted if the child suffers harm or drowns.
Michael v. State, 767 P.2d 193 (Alaska App. 1998)
As you read the next case, Michael v. State, consider that one of the primary purposes of modern criminal statutes is to provide notice to individuals as to what is, and is not, criminal. The criminal law does not explain what a person may do, but instead, what a person may not do (or in the context of omissions, what a person must do). How does a parent know when they must protect their child? The following case begins to address this issue. In the next section you will read, Willis v. State, 57 P.3d 688 (Alaska App. 2002), which will address how the government proves a parent violated their duty to protect.
767 P.2d 193
Court of Appeals of Alaska.
Steven A. MICHAEL, Appellant,
v.
STATE of Alaska, Appellee.
No. A–2041.
Dec. 23, 1988.
OPINION
COATS, Judge.
Loreli and Steven Michael were each indicted on thirteen counts of assault in the first degree. Each count of the indictment charged that Loreli and Steven Michael had assaulted their daughter D.M. Each count of the indictment represented a bone that had been broken in the body of their daughter.
[…]
Loreli and Steven Michael were tried jointly in October, 1986. Acting Superior Court Judge Alexander O. Bryner presided over the court trial. Judge Bryner found Loreli Michael guilty of three counts of first-degree assault. He concluded that Loreli Michael had personally inflicted D.M.’s injuries. He sentenced her to ten years with three years suspended on each count, placing her on probation for five years following her release from confinement. … Judge Bryner found that Steven Michael had not personally inflicted the injuries on his daughter and had not acted as an accomplice to the infliction of D.M.’s injuries. However, Judge Bryner found that Steven Michael had caused harm to his daughter by failing to prevent his wife from injuring D.M. and by failing to obtain medical aid. He found Steven Michael guilty of two counts of second-degree assault, a lesser-included offense. Judge Bryner sentenced Steven Michael to four years imprisonment with two years suspended, placing Michael on probation for five years following his release from confinement. […] Steven Michael now appeals, arguing that (1) he could not properly be convicted of assault on the theory that he did not act to prevent his daughter’s injuries[.] We affirm [Steven Michael’s] convictions.
D.M. was born on November 5, 1985, to Loreli and Steven Michael. On January 5, 1986, the Michaels brought D.M. into the emergency room at the Elmendorf Air Force Base hospital because her leg was red and swollen. Dr. Carole Buchholz examined her and ordered x-rays.
Upon examining the x-rays, Dr. Buchholz saw “obvious fractures of all four bones in the lower legs,” two bones in each leg. Dr. Buchholz ordered additional x-rays, which showed many more broken bones: both femurs (upper legs), the upper and lower bones of both arms, and at least nine ribs. Dr. Steven Diehl, a radiologist, was brought in to review the x-rays. Dr. Diehl concluded that D.M. had suffered multiple fractures and that her bones were in different stages of recovery.
Drs. Buchholz and Diehl testified that a baby’s bones heal quite rapidly if broken. The doctors were able, therefore, to determine the approximate date that each of the fractures was inflicted. Some of the fractures were very recent; others were several weeks old. The left tibia (lower leg) had been fractured twice, at two different times. The rib fractures had been inflicted at different times. Several other bones had been fractured more than once. The nature and number of the fractures and the amount of force required to inflict them excluded accidental causes. D.M. also had a bruise on the back of her left shoulder, and two burns on her left forearm. She also had broken blood vessels on her face and neck.
Loreli Michael had been the baby’s primary caretaker. She stayed home with the baby during the day. Steven Michael, who was in the Army, was out of town on field maneuvers for about two weeks beginning December 5. He returned home sometime between December 14 and 20. From his return until January 5, he would on some days spend long hours on duty, but on other days would spend a substantial amount of time at home. Although Loreli Michael did most of the caretaking—diaper changing and the like—when he was home, Steven Michael occasionally performed these duties.
Loreli Michael told Sandra Csaszar, the Division of Family and Youth Services social worker who investigated the case, that D.M. had always been in the presence of one or the other parent from the time she left the hospital after her birth until January 5. She had never been left with a babysitter.
Based upon the foregoing, and other evidence, Judge Bryner concluded that Loreli Michael was guilty of three counts of assault in the first degree. He concluded that Loreli Michael had directly assaulted D.M., personally causing D.M.’s injuries.
[At trial, the state’s theory of criminal liability] for Steven Michael was that Michael had breached his legal duty to aid and assist his child because he did not aid his daughter when he knew that she was physically mistreated and abused by his wife. [Judge Bryner found Michael guilty on this] theory [noting,]
Mr. Michael had a legal duty to aid and assist his child if she was under the threat or risk of physical damage or assault—from any person, including his wife. I find that that duty existed both under Alaska statutes as well as under common law. Second, I find that Mr. Michael did not aid and did not help his daughter when she was in fact physically mistreated and abused by his wife. Third, I find that Mr. Michael’s failure to act was knowing. In other words, I find that Mr. Michael was capable of rescuing and assisting his daughter. And I find that he knew that he was capable and—could have rescued her. I find specifically that he was aware of a substantial probability that his daughter was being mistreated, or physically abused by his wife. And that he failed to act in the face of … that awareness. As a result, I further find that as a result of his failure to act, that his daughter suffered serious physical injury.
….
Mr. Michael was aware, after December 20th, … of [a] substantial probability that his daughter was … under a risk of physical attack and assault from his wife of some sort. Knowing that risk[,] I find that the failure to render assistance under those circumstances constitutes a gross departure [or] deviation from the standard of conduct that would be expected of … ordinary people in the normal everyday conduct of their affairs under similar circumstances. And for that reason I do find that Mr. Michael, in failing to take any action on behalf of his … daughter, acted recklessly.
Stephen Michael argues that he could not properly be convicted for assault for failing to act to protect his child. The question which he raises is a question of statutory interpretation. … Neither the Alaska Supreme Court nor this court has previously decided this question; this is a case of first impression in this jurisdiction.
[…]
We … turn to the common law and to decisions of other state courts to determine how other courts have resolved similar problems. In general, under the common law a person did not face criminal liability for the failure to aid another person. However, the common law created a clear exception to this general rule where there was a parent-child relationship. A parent had a clear duty to aid his child.
Although there does not seem to be extensive case law directly on point in this area of the law, the case law that is available appears to be unanimous in establishing the duty of a parent to act to protect his child. […] Furthermore, other Alaska statutes establish a duty for a parent to care for a child. AS 11.51.120(a) provides misdemeanor criminal penalties where “a person legally charged with the support of a child under 18 years of age … fails without lawful excuse to provide support for the child.” AS 11.51.120(b) defines support to include “necessary food, care, clothing, shelter, medical attention, and education.”
We conclude that Steven Michael could properly be convicted of assault in the second degree[.] In interpreting [the law], the critical question before us is whether Steven Michael’s failure to take reasonable actions to protect his child from serious physical injury by Loreli Michael can be said to have caused D.M.’s injuries. Although generally a person has no duty to act to protect another, we find that the common law and Alaska statutes establish a clear duty upon a parent to protect his child. It seems clear under the law that where the parent fails to carry out this duty and the child is injured as a result, the parent has caused the child’s injuries and may be held criminally liable.
[…]
The conviction is AFFIRMED.
Exercises
Answer the following question. Check your answer using the answer key at the end of the chapter.
1. Jacqueline is diagnosed with epilepsy two years after receiving her driver’s license. While driving to a concert, Jacqueline suffers an epileptic seizure and crashes into another vehicle, injuring both of its occupants. Can Jacqueline be convicted of a crime in this situation? Why or why not? | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/04%3A_The_Elements_of_a_Crime/4.02%3A_Criminal_Act.txt |
All crimes, with a few exceptions to be discussed shortly (e.g., strict liability), include a culpable mental state or mens rea. Mens rea refers to the mental state of the accused at the time they committed the offense. Put another way, mens rea describes the purposefulness – or lack thereof – of the defendant’s conduct. A person’s level of criminal intent forms the basis of grading a particular offense – that is, the more “evil” a person’s intent, the more serious the offense is considered in the eyes of the law.
A culpable mental state is an essential element for most crimes. If the government is unable to prove that the defendant acted with the applicable culpable mental state, the person is not guilty of the offense. AS 11.81.600(b). It is the same as the defendant not committing the act. Mental state is different than criminal thoughts or motive. Thoughts – no matter how evil – cannot be criminalized. Motive, while potentially helpful in understanding why a person committed a crime, is never something the government is required to prove. Let’s look at first-degree murder as an example.
Figure 4.4 Alaska Criminal Code – Murder in the First Degree
As you can see, first-degree murder must be committed intentionally. The defendant must intend to cause the death of the victim – accidentally causing death is insufficient. Likewise, intending to seriously injure the victim is insufficient. The defendant must have a conscious objective to cause the victim’s death.
All jurisdictions vary in their approach to defining a particular culpable mental state. For clarity, this section explores the common law definitions of criminal intent before exploring the different culpable mental states under the Alaska Criminal Code.
Example of Noncriminal Thoughts
Brianna, a housecleaner, fantasizes about killing her elderly client Phoebe and stealing all her jewelry. Brianna writes her thoughts in a diary, documenting how she intends to rig the gas line so that gas is pumped into the house all night while Phoebe is sleeping. Brianna includes the date that she wants to kill Phoebe in her most recent diary entry. As Brianna leaves Phoebe’s house, her diary accidentally falls out of her purse. Later, Phoebe finds the diary on the floor and reads it. Phoebe calls the police, gives them Brianna’s diary, and insists they arrest Brianna for attempted murder. Although Brianna’s murder plot is sinister and is documented in her diary, charging Brianna with attempted murder is inappropriate at this point. Brianna cannot be criminally punished for her thoughts alone . If Brianna took a substantial step toward killing Phoebe, an attempted murder charge might be appropriate. However, at this stage, Brianna is only planning a crime, not committing a crime. You will explore the crime of attempt in Chapter 6, “Inchoate Offenses.”
Motive
Remember, intent should not be confused with motive. The criminal law never requires the government to prove motive. Motive, or the reason the defendant commits a criminal act, can help explain a defendant’s actions or culpable mental state, but motive alone cannot act as a substitute for the applicable mens rea. Motive is never an element of a crime.
Common Law Mental States
At common law, all crimes require the criminal act be committed with a “guilty mind.” The level of one’s “guilty mind” resulted in three culpable mental states ranked in order of culpability: malice aforethought, specific intent, and general intent. Although individual statutes and cases use different words to indicate particular criminal intent, what follows is a basic description of the intent definition adopted by many jurisdictions. Further, even though Alaska has abolished the common law culpable mental states, they are routinely referenced in caselaw. For this reason, a general understanding of common law is necessary for a complete understanding of criminal law.
Malice Aforethought
Malice aforethought is a special common law mental state designated for only one crime: murder. Malice aforethought means “intent to kill” without adequate justification. We will explore justifications in subsequent chapters, but for now, recognize that malice aforethought is the specific intent to kill. Society considers acting with a specific intent to kill another human being the most evil of all intents, so individuals who act with malice aforethought generally receive the most severe punishment. Malice aforethought and criminal homicide are discussed in detail in Chapter 9, “Criminal Homicide.”
Specific Intent
Specific intent is the highest level of culpability other than malice aforethought. Specific intent refers to an intent to accomplish a specific act prohibited by law. Typically, specific intent means that the defendant acts with a more sophisticated level of awareness. The crimes of theft and larceny are historically specific intent crimes. Theft requires the “intent to permanently deprive” another of property. The statute requires more than simply taking the property, the law requires the defendant to intend to keep the property permanently. This is the difference between criminal theft and simply borrowing someone’s property without consent. For example, if Pauline borrows Peter’s razor to shave her legs, she has “taken property of another,” but she has not committed the crime of theft for the simple reason that she intends to return the property after use.
General Intent
General intent is less sophisticated than specific intent. General intent crimes are easier to prove. A basic definition of general intent is the intent to perform the criminal act or actus reus . For example, a person commits the crime of second-degree harassment if the person “subjects another person to offensive physical contact.” AS 11.61.120(a)(5). This statute describes a general intent crime. To be guilty of harassment, the defendant must recklessly cause harmful or offensive contact. The defendant does not have to desire that the contact produces a specific result , such as scarring, or death; nor does the defendant need awareness that the physical contact is illegal.
Alaska’s Mental States
Alaska divides criminal intent into five culpable mental states listed in order of culpability: intentionally, knowingly, extreme recklessness, recklessness, and criminally negligence. Although there are five culpable mental states under Alaska law, the criminal code only defines four. The fifth – extreme recklessness – is defined by caselaw.
It can be helpful to think of criminal intent as a continuum with no intent (i.e., strict liability) on one end and premeditation on the other end.
Figure 4.5 Culpable Mental State Continuum
Intentionally
A defendant acts intentionally if he has a conscious objective to cause a particular result. AS 11.81.900(a)(1). Put another way, the defendant intends to engage in conduct of that nature and intends to cause a certain result. Intentionally resembles specific intent to cause harm, discussed previously. Although the defendant must intend to cause a particular result, the person’s intent need not be the person’s only objective. A person can, and frequently does, have multiple intents. For example, consider the person who walks in on their spouse and lover engaged in a sexual act. The person may, in a moment of rage, form an intent to kill their spouse and their spouse’s lover. The intent to kill one person (e.g., the spouse), does not mean the person does not also hold an intent to kill another person (e.g., the lover). Also, take note that acting intentionality is not the same as acting deliberately, or premeditatively. Alaska law does not require a person to premediate (i.e., plan) the criminal act. Intentionality can – and frequently does – form in an instant.
Knowingly
Knowingly indicates that the defendant is substantially aware of the nature of the act and its probable consequences. AS 11.81.900(a)(2). Knowingly differs from intentionally in that the defendant is not acting to cause a certain result but is acting with the awareness that the result is practically certain to occur. Alaska law describes knowingly as follows: “A person acts ‘knowingly’ with respect to conduct … when the person is aware that the conduct is of that nature; … knowledge is established if a person is aware of a substantial probability of its existence, unless person actually believes it does not exist[.]” AS 11.81.900(a)(2).
Example of Knowingly
Victor brags to his girlfriend Tanya that he can shoot into a densely packed crowd of people on the subway train without hitting any of them. Tanya dares Victor to try it. Victor takes his pistol to the subway train, aims at a group of people standing with their backs to him, and shoots. As he shoots, Victor tells Tanya, “watch how close I can get without hitting them!” A bullet strikes and kills Monica, who was standing in the group. In this case, Victor did not intend to shoot Monica. In fact, Victor’s goal was to shoot and miss all the standing subway passengers. However, Victor was aware that he was shooting a loaded gun (the nature of the act) and was substantially certain that shooting into a crowd would result in somebody getting hurt or killed. Victor acted knowingly under Alaska law. Victor is likely guilty of second-degree murder. AS 11.41.110(a)(1).
Extreme Recklessness
As mentioned before, extreme recklessness is not one of the four defined culpable mental states in the code but instead a creature of statutory interpretation (case law). The criminal code refers to extreme recklessness as “conduct manifesting an extreme indifference to the value of human life.” See generally Neitzel v. State, 655 P.2d 325, 337 (Alaska App. 1982).
Very few crimes require the defendant act with extreme recklessness. In fact, Alaska only recognizes three offenses that include this mental state – second-degree murder, first-degree assault, and murder of an unborn child. AS 11.41.110(a)(2), 11.41.200(a)(3), and 11.41.150(a)(4), respectively.
The mental state requires the jury to assess the level of recklessness of the defendant’s conduct. The jury must weigh the social utility of the defendant’s conduct (if any) against the precaution the defendant took to minimize the apparent risks. For example, playing “Russian Roulette,” in which the participant has a 16.7% chance of being killed and an 83.3% chance of not being killed, is incredibly dangerous and completely lacks any social utility. On the other hand, the law recognizes that there may be some social utility in firing a gun at an attacking bear in an attempt to rescue a victim even if the bullet strikes the victim, not the bear. The law recognizes that the social utility of this latter example may outweigh the magnitude of the risk. See id. Whether particular acts constitute extreme recklessness is a question of fact for the trier of fact (like all culpable mental states).
We will explore this mental state in more detail in Chapter 9, “Criminal Homicide”.
Example of Extreme Recklessness
Victor and his girlfriend Tanya go camping for the weekend with friends. Late one night, Victor, Tanya, and friends are sitting around the campfire playing with their pistols. Unbeknownst to Victor, Tanya crawls into the tent to go to sleep. Victor, mistakenly believing the tent is empty, shoots into the tent to be funny. One of the bullets strikes Tanya, killing her instantly. In this case, Victor did not intend to shoot Tanya, nor was Victor substantially certain that his errant bullet would kill Tanya. Instead, Victor likely acted with extreme recklessness since there was little social utility to his conduct (i.e., there was no reason to shoot into a tent not knowing if it was occupied) and Victor took no steps to ensure that it was safe to shoot. Under these circumstances, Victor likely engaged in conduct that caused Tanya’s death under circumstances that manifest an extreme indifference to human life – that is, with extreme recklessness. Victor is guilty of second-degree murder. AS 11.41.110(a)(2).
Recklessly
Recklessly is a lower level of culpability than knowingly. The degree of risk awareness is key to distinguishing a reckless intent crime from a knowing intent crime. A defendant acts recklessly if they consciously disregard a substantial and unjustifiable risk that the bad result or harm will occur. AS 11.81.900(a)(3). This is different from a knowing intent crime, where the defendant must be “substantially certain” of the bad results. The reckless intent test is two-pronged. First, the defendant must consciously disregard a substantial risk of harm. The first prong is subjective; the defendant must know of the substantial risk and consciously disregard it. This risk must be unjustifiable, meaning that there is no valid reason for the risk. The second prong is objective; the defendant’s disregard of the risk must be a gross deviation from what a reasonable person would be willing to do. Under these circumstances, the defendant’s action is reckless. As the code states, “the risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” AS 11.81.900(a)(3)
Example of Recklessly
Let’s revisit Victor and Tanya. Suppose Victor and Tanya are driving back from their weekend camping trip with friends. As they are driving back Victor is shooting at passing highway signs. Although there is oncoming traffic on the highway, the oncoming cars are few and far between. As they pass an upcoming highway sign Victor shoots. The bullet ricochets off the sign and strikes a passing car, killing a passenger. A jury would likely find that Victor was acting recklessly in this situation. Victor’s knowledge and awareness of the risk of injury or death when shooting a gun with passing cars is probably substantial. A reasonable, law-abiding person would probably not take this action under these circumstances. Victor is likely guilty of manslaughter, a lower-level of criminal homicide. AS 11.41.120(a).
Criminal Negligence
The lowest level of criminal culpability is criminal negligence. The difference between reckless and criminally negligent culpability is the defendant’s lack of awareness. The criminally negligent defendant is faced with a substantial and unjustifiable risk, in which they are unaware, whereas the reckless defendant consciously disregards the unjustified risk. The criminally negligent defendant “fails to perceive” the risk. AS 11.81.900(a)(4).
It is important to note that criminal negligence is different than civil negligence. See State v. Hazelwood, 946 P.2d 875, 878 (Alaska 1997). Criminal negligence requires a gross deviation from the standard of conduct a reasonable person would observe in a particular situation, whereas civil negligence requires a simple deviation from what a reasonable person would do in the situation. While this distinction may seem minor, remember, criminal liability results in the potential depravation of liberty. Civil liability simply results in the loss of money.
Figure 4.6 Understanding the Difference between Criminal and Civil Negligence
Example of Criminal Negligence
Let us discuss Victor and Tanya one last time. Assume that Victor is driving him and Tanya back home after their long, fun weekend of camping with friends. While driving, Victor continually sends text messages to a friend who missed the camping trip. While Victor is typing out a text message he drives off the roadway, causing the vehicle to roll into the ditch. Tanya dies in the accident. Under these facts, Victor may be unaware that texting and driving could result in him driving off the roadway and flipping the vehicle into the ditch. However, the trier of fact may determine that a “reasonable person” would be aware of the dangers of texting and driving, and such behavior could result in injury or death. This would be a finding that Victor acted criminally negligent in causing Tayna’s death. Under these circumstances, Victor is likely guilty of criminally negligent homicide. AS 11.41.130(a).
Elements of Different Culpable Mental States
Occasionally, a criminal statute will require different culpable mental statutes for different elements. In this scenario, the government must prove each mens rea beyond a reasonable doubt for each element.
Example of a Crime that Requires More Than One Criminal Intent
A person commits the crime of burglary in the first degree if the person “knowingly enters a dwelling with the intent to commit a crime therein.” AS 11.46.300. The statute contains three elements: (1) entering, (2) a dwelling, and (3) with the intent to commit a crime inside. The defendant must act “knowingly” with respect to entering a dwelling, but the defendant must act intentionally with respect to committing a crime while inside. This statute contains two different culpable mental states the prosecution must prove beyond a reasonable doubt to secure a conviction.
Willis v. State, 57 P.3d 688 (Alaska App. 2002)
The following case, Willis v. State, revisits the circumstances surrounding a parent’s duty to protect their child. How is a parent supposed to know what circumstances may lead to criminal liability? The answer involves the application of the relevant culpable mental states. As you read the case, pay attention to how the mens rea and the failure to act are intertwined.
57 P.3d 688
Court of Appeals of Alaska.
Kevin WILLIS and Barbara Nauska, Appellants,
v.
STATE of Alaska, Appellee.
Nos. A–7587, A–7778.
Oct. 25, 2002.
OPINION
MANNHEIMER, Judge.
Kevin Willis and Barbara Nauska were indicted for seriously injuring their two-month-old child. At six o’clock in the evening on July 17, 1997, Nauska brought the baby to the emergency room at Bartlett Regional Hospital in Juneau. The baby had a fractured skull and broken ribs.
According to medical testimony, these injuries were likely inflicted when someone grasped the infant by its chest and bashed its head against a wall or other hard object. Medical testimony also indicated that the baby sustained these injuries during the two hours preceding his arrival at the hospital. During most of this time, the infant was in the care of Willis and Nauska on their small houseboat. However, Willis and Nauska both claimed that they did not know how the baby was injured.
Following a police investigation, Willis and Nauska were indicted for second-degree assault. The State conceded that it could not prove which of them had assaulted the baby. However, the indictment was based on the theory that one of them had personally assaulted the infant while the other had knowingly stood by and allowed the assault to happen—thus violating their parental duty to protect the child and rendering them criminally liable for the resulting injuries.
At trial, Willis and Nauska asserted that their babysitter, Patrick Prewett, had assaulted the baby before they returned home that afternoon. The jury rejected this defense and convicted Willis and Nauska of second-degree assault[.] Both defendants now appeal their convictions and their resulting sentences.
[…]
The adequacy of the jury instructions concerning criminal responsibility based on a parent’s failure to act to protect their child
As explained above, the State could not identify either Willis or Nauska as the person who inflicted the baby’s injuries. The State’s theory of prosecution was that one of them assaulted their child while the other stood by and allowed the assault to occur. Because the case was litigated this way, the jurors had to be instructed concerning the circumstances under which a parent can be held criminally responsible for failing to protect their child.
Judge Weeks gave the jurors an instruction that combined both theories of criminal responsibility — i.e., responsibility based on personal commission of an assault, and responsibility for failing to act to prevent the assault:
A person commits the crime of assault in the second degree if, either by acting or by failing to act when he or she has a legal duty to act, that person recklessly causes serious physical injury to another person.
In order to establish the crime of assault in the second degree …, it is necessary for the state to prove beyond a reasonable doubt the following:
First, that the event in question occurred at or near Juneau and on or about July 17, 1997;
Second, that the defendant had a duty to protect [the child];
Third, that the defendant performed an act or failed to perform an act which resulted in serious physical injury to [the child];
Fourth, that the defendant acted recklessly.
[…]
On appeal, Willis and Nauska argue that the jury instruction on the elements of assault fails to correctly state the components of criminal responsibility based on dereliction of duty. As we explain below, the defendants are correct. However, … [g]iven the facts of this case and the way it was litigated, we conclude that this jury instruction did not constitute plain error [requiring reversal].
The two culpable mental states that must be proved when a parent is charged with homicide or assault for failing to protect their child
The elements of criminal responsibility based on dereliction of duty are set out in Michael v. State, 767 P.2d 193 (Alaska App.1988). The actus reus of the offense is the defendant’s failure to act when the defendant had a duty to act. The State must show that this failure to act was “knowing”.
More specifically, when a defendant is prosecuted for failing to act, the State must show that the defendant was aware of the circumstance that triggered the duty to act and that, being aware of this circumstance, the defendant chose to do nothing—i.e., “knowingly” refrained from acting. In the case of a parent prosecuted for assault or homicide for failing to protect their child, the State must prove that the parent knew of the need to take action to protect the child and knowingly refrained from taking action.
In addition to proving this actus reus, the State must additionally prove that the parent acted with the requisite culpable mental state regarding the result specified by the offense. (In a homicide prosecution, the prohibited result is death. In an assault prosecution, the prohibited result is either serious physical injury, physical injury, or apprehension of imminent injury.)
At first blush, it might seem superfluous to require proof of a separate culpable mental state regarding the possibility of the child’s injury—for, as we have just explained, the State must prove that the parent knew of the need to protect the child in order to establish that the parent’s failure to act was “knowing”. But children often engage in sports and other activities that hold some degree of physical peril. Even though a parent understands that their child might be injured while engaging in these activities, the parent’s knowing failure to intervene does not constitute a crime unless the government also proves that the parent acted (or, more precisely, failed to act) with a culpable mental state regarding the potential injury—a culpable mental state that will vary according to the crime charged.
For example, even though a child might conceivably suffer serious physical injury while skiing or while driving a motor vehicle, the child’s parent could not be convicted of second-degree assault under AS 11.41.210(a)(2) (recklessly causing serious physical injury) for failing to take protective action unless the government proved that the parent acted “recklessly” with regard to this result—i.e., proved that the parent was “aware of and consciously disregard [ed] a substantial and unjustifiable risk” that serious physical injury would occur if the parent failed to intervene. See AS 11.81.900(a)(3), the statutory definition of “recklessly”.
Under this statutory definition, the government would have to show that the risk of serious physical injury was “of such a nature and degree that [the parent’s] disregard of it constitute[d] a gross deviation from the standard of conduct that a reasonable person would observe in the situation”. This, in a nutshell, is the difference between letting a toddler play with a firearm and letting an adolescent go on a hunting trip.
[…]
Why we conclude that Judge Weeks did not commit plain error when he gave this jury instruction
We have just explained why, when a defendant is prosecuted for second-degree assault based on dereliction of their parental duty, the government’s burden to prove that the defendant knowingly failed to act is distinct from its burden to prove that the defendant was reckless with respect to the possibility that their failure to act might result in serious physical injury. Nevertheless, it is often true that the same facts will prove both elements.
For example, if a parent does nothing even though they are aware that their spouse is assaulting their infant child, this fact will tend to prove both the defendant’s knowing failure to act and the defendant’s recklessness concerning the possibility of serious physical injury. That was the case in Michael, and it was also the State’s theory of prosecution against Willis and Nauska.
The State presented evidence that Willis’s and Nauska’s baby sustained serious physical injury in the late afternoon of July 17, 1997, that this injury was the result of an assault rather than an accident, and that Willis and Nauska were alone with the baby on a small houseboat when the injury occurred. The State alleged that one of the two defendants violently assaulted the baby while the other one looked on and did not intervene.
Faced with this theory of prosecution, Willis and Nauska conceivably might have pursued litigation strategies that highlighted the need to instruct the jury on the element of a knowing failure to act. For instance, either defendant might have contended that they left the houseboat for some reason and that their spouse was alone with the baby when the baby was injured. Alternatively, either defendant might have contended that, although they were present on the houseboat when the baby was injured, they had fallen asleep from fatigue and/or intoxication and thus they were unaware that the baby was being assaulted by their spouse. Or either defendant might have asserted that their spouse assaulted the baby but that the assault occurred in an instant, giving the defendant no time to intervene or do anything other than rush the baby to the hospital.
Likewise, the defendants might have pursued a litigation strategy that highlighted the distinction between a knowing failure to act and recklessness concerning the possibility of serious physical injury. For instance, one of the defendants might have asserted that, even though they knowingly failed to prevent their spouse from assaulting the child, they had no reason to believe that the assault would be severe enough to inflict serious physical injury on the baby.
But Willis and Nauska did not pursue such litigation strategies. Instead, from beginning to end, Willis and Nauska jointly asserted that no harm had befallen the baby while he was in their presence. Both defendants argued that Prewett [the babysitter] was the culprit—that he assaulted the baby before Willis and Nauska returned to the houseboat in the late afternoon.
Given the way this case was litigated, the jury’s crucial task was to determine who injured the baby. If it was either Willis or Nauska, this meant that the remaining spouse witnessed the assault and did nothing. Under these circumstances, the two culpable mental states effectively coalesced. Judge Weeks’s jury instruction told the jurors that the State was obliged to prove that the non-assaulting parent acted recklessly—that the non-assaulting parent was aware of and consciously disregarded a substantial and unjustifiable possibility that their spouse would inflict serious physical injury on the baby. Given the defense strategy adopted by Willis and Nauska, such a finding was tantamount to a finding that the non-assaulting parent knowingly failed to protect the baby.
[…]
Conclusion
The judgements of the superior court are AFFIRMED.
Strict Liability
There is one big exception to the rule that every criminal law violation includes a culpable mental state – strict liability. Strict liability offenses have no intent element. AS 11.81.600(b). Strict liability offenses hold a person criminally responsible for their conduct regardless of their intent. Generally speaking, strict liability offenses are limited to regulatory and public welfare crimes. With a strict liability crime, the prosecution has to prove only the criminal act, causation, and harm, depending on the elements of the offense.
Example of a Strict Liability Offense
The Glenn Highway has a posted speed limit of 65 mph. If Susie is stopped by Anchorage police for driving 75 mph, she is subject to a traffic ticket regardless of her intent. Thus, “but officer, I didn’t know I was speeding” is not a valid defense. This is a strict liability offense. Susie’s knowledge of the nature of the act is irrelevant. The prosecution only needs to prove the criminal act to convict Susie because this statute is strict liability.
Kinney v. State, 927 P.2d 1289 (Alaska App. 1996)
Does the government have to prove a person knew their conduct was illegal? This is a different situation than strict liability discussed above. In the example above, Susie claimed she did not know she was speeding. But what if the defendant does not know their conduct was illegal? Generally, ignorance of the law is no defense. But this rule is not absolute. In the following case, Kinney v. State, the court faced a defendant claiming the government was required to prove that he knew his conduct was illegal. As you read Kinney notice how several of the principles discussed throughout the text impact the court’s reasoning.
927 P.2d 1289
Court of Appeals of Alaska.
Dean C. KINNEY, Appellant,
v.
STATE of Alaska, Appellee.
No. A–5812.
Nov. 29, 1996.
OPINION
MANNHEIMER, Judge.
Dean C. Kinney was convicted of arranging a sale of liquor in a local-option community—a community where, by local vote, the sale of liquor was banned. Kinney argues that his conviction is invalid because the jury never determined whether Kinney knew that he was breaking the law when he arranged the sale of the liquor. We hold that the State was not required to prove that Kinney knew he was breaking the law.
[…]
Facts of the Case
During January and February of 1994, the state troopers conducted an investigation of bootlegging in Bethel. One of their undercover informants was Rick Wilson. Wilson had arranged to purchase liquor from A.A., a suspected bootlegger, on February 1st, but when Wilson arrived for the transaction, A.A. demurred. Instead, A.A. offered to introduce Wilson to another bootlegger. He then took Wilson to the Hammer Manor Apartments, where he introduced him to the manager, Dean Kinney. Kinney offered to sell liquor to Wilson, but Wilson declined.
The next day, Wilson returned to the Hammer Manor Apartments and attempted to purchase alcohol from Kinney. This time, Kinney told Wilson that he would have to make a telephone call first. Kinney made the call and, soon thereafter, someone knocked at Kinney’s door. Kinney went out to speak to the person at his door; when Kinney came back in, he was carrying a bottle of vodka. Kinney gave the bottle to Wilson, and Wilson gave Kinney \$50.00 in pre-recorded buy money. Upon leaving Kinney’s apartment, Wilson took the bottle to his trooper supervisor and reported this transaction. Based on this sale, the troopers obtained a warrant to record ensuing transactions between Wilson and Kinney.
On February 4th, Wilson returned to Kinney’s apartment and asked if he could buy another bottle of liquor. This second transaction occurred in much the same way as the first: Kinney made a telephone call, a bottle was delivered outside Kinney’s apartment, and Kinney sold the bottle to Wilson for \$50.00. During the negotiation of this sale, Wilson asked Kinney if he could “give [him] a break on the price”. Kinney replied that he was only making a profit of \$5.00 on each sale and he therefore could not lower the price.
On February 18th, Wilson made a third purchase from Kinney. Wilson went to Kinney’s apartment and told Kinney that he wanted to make a purchase. This time, Kinney asked Wilson how many bottles he wished to purchase; Wilson replied that he wanted just one. Again, Wilson offered Kinney \$50.00, but this time Kinney told Wilson to return one hour later. Both men left Kinney’s apartment. Approximately one hour later, Kinney returned to the apartment, and Wilson arrived soon thereafter. Kinney had a bottle of liquor for Wilson upon his return. During this third transaction, Wilson again asked Kinney to give him a break on the price, but Kinney again refused, adding that he “wasn’t making anything”.
Kinney was ultimately indicted on three counts of felony bootlegging[.] Following a jury trial in the Bethel superior court, Kinney was convicted for the second and third sales (the ones that had been recorded).
In a prosecution for bootlegging, must the government prove that the defendant knew his conduct was illegal?
At trial, Kinney asked the judge to instruct the jury that Kinney could not be convicted unless the government proved that he was “aware that his conduct was of an illegal nature”. The trial judge declined to give this instruction. On appeal, Kinney argues that his proposed instruction was constitutionally required.
Kinney’s argument hinges on language taken from Hentzner v. State, 613 P.2d 821 (Alaska 1980), a case in which the supreme court interpreted the culpable mental state required for the crime of selling unregistered securities. Hentzner was prosecuted under [a statute], which provide[d] criminal penalties for anyone who “willfully” violates the Securities Act. The supreme court had to decide what “willfully” meant.
To interpret this statute, the supreme court relied on the principle that a person may not be convicted of a crime (with the exception of minor violations and public welfare offenses) unless the government proves that the defendant acted with “criminal intent”, in the broad sense of “a culpable mental state”. Referring to this basic requirement of criminal intent, the court said:
Where the crime involved may be said to be malum in se, that is, one which reasoning members of society regard as condemnable, awareness of the commission of the act necessarily carries with it an awareness of wrongdoing. In such a case[,] the requirement of criminal intent is met upon proof of conscious action, and it would be entirely acceptable to define the word “willfully” to mean no more than consciousness of the conduct in question. … However, where the conduct charged is malum prohibitum[,] there is no broad societal concurrence that it is inherently bad. Consciousness on the part of the actor that he is doing the act does not carry with it an implication that he is aware that what he is doing is wrong. In such cases, more than mere conscious action is required to satisfy the criminal intent requirement….
The crime of offering to sell or selling unregistered securities is malum prohibitum, not malum in se. Thus, criminal intent in the sense of consciousness of wrongdoing should be regarded as a separate element of the offense[.]
Hentzner, 613 P.2d at 826.
Kinney contends that the crime of bootlegging, like the crime of selling unregistered securities, is malum prohibitum. He therefore argues that, like the defendant in Hentzner, he too could not be convicted unless the State proved that he acted with “consciousness of wrongdoing”. According to Kinney, this means proving that he understood that his conduct violated the law.
The distinction between crimes that are “mala prohibita” and those that are “mala in se” has not only shaped but, to a certain extent, also bedeviled the law. Basically, a crime is termed “malum prohibitum” if it is “not inherently evil [but is] wrong only because prohibited by the legislature”. A crime is “malum in se” if it is “wrong in [itself], inherently evil”.
However, as [legal scholars] point out, this terminology has never been precise. Generally, common-law crimes are called “mala in se” and statutory crimes are called “mala prohibita”, but courts also say that a crime is “malum in se” if it involves “moral turpitude”. These criteria sometimes point in different directions. For instance, the offenses of embezzlement and obtaining money by false pretenses are statutory expansions of the common-law crime of larceny, yet few would dispute their classification as crimes of moral turpitude.
[…]
Given criteria like these, there is little wonder that courts reach differing answers when asked to classify the same offense. For instance, the crimes of driving while intoxicated and possession of drugs have been classified by some courts as mala in se, while other courts have found them to be mala prohibita. [Legal scholars] conclude that “[t]he difficulty of classifying particular crimes as mala in se or mala prohibita suggests … that the classification should be abandoned[.]”
As an intermediate appellate court, we are loath to abandon a classification that our supreme court has expressly relied on. Rather, our task should be to interpret how that classification applies to the case before us.
Hentzner declares that a crime is malum prohibitum if “there is no broad societal concurrence that [the proscribed conduct] is inherently bad”. One could argue that even though unlicensed sale of liquor is normally malum prohibitum, sale in a local-option community is malum in se. If a person sells liquor in a community where sale is legal but restricted to certain license-holders, then the crime is simply a violation of laws regulating commercial transactions. But if a community has seen the need to prohibit all sales of alcohol, then there may be “broad societal concurrence” that the act of selling alcohol is condemnable.
Despite this potential argument, we will assume for purposes of deciding Kinney’s appeal that all laws prohibiting the sale or distribution of alcohol create mala prohibita crimes. Nevertheless, we reject Kinney’s assertion that, under Hentzner, the State had to prove that Kinney understood the law and knew that he was breaking it.
As noted above, Hentzner involved a prosecution for the crime of offering securities that had not been registered with the Department of Commerce and Economic Development. [In Hentzer], the defendant, who was attempting to raise money for a gold-mining venture, offered to sell his to-be-mined gold for the price of \$80.00 an ounce (substantially below market value) to anyone who would pay the purchase price immediately. That is, Hentzner was asking people to give him money in exchange for his promise that, in several months, they would be repaid in gold at the extremely favorable rate of one ounce for every \$80.00 they advanced him.
The State alleged that Hentzner’s fund-raising effort constituted the offering of a “security” (more specifically, an “investment contract”). The State’s theory was that, by offering to sell gold that had not yet been mined, Hentzner was in effect asking people to invest money upon the promise that they would share in future gold-mining profits to be derived from Hentzner’s entrepreneurial or managerial efforts.
Hentzner represented a collision between the practice of “grubstaking”, a traditional way for western miners to raise capital, and Alaska’s securities act—in particular, the labyrinth of definitions and exemptions codified in [Alaska securities laws]. Under Alaska’s securities laws, the request for a grubstake is the offer of a “security”, and a miner who wishes to ask for a grubstake must register this offering.
The definition of a security and the rules governing registration are not matters of common knowledge. Thus, the supreme court faced a situation in which a miner who pursued a traditional capital-raising practice, who engaged in no misrepresentation, and who (at least arguably) acted reasonably in failing to discover the need to register his fund-raising effort, could nevertheless face felony conviction for his failure to register the grubstake offer with the Department of Commerce and Economic Development. Given this context, it is hardly surprising that the supreme court ruled that “willfully” failing to register the grubstake offer required proof of something more than mere failure to register.
Kinney interprets Hentzner as saying that this “something more” must be proof that the defendant understood that his conduct violated the law.
[…]
[However, the] language from Hentzner indicates that the supreme court did not think it had imposed the mens rea requirement that Kinney argues for in the present appeal—the purported requirement that the government prove that the defendant acted with “knowledge of the law” and awareness “that he was breaking it”.
[The supreme court’s] “primary concern was to avoid application of strict liability in cases where the accused could be subjected to severe criminal penalties”. Hentzner was charged with a felony, not for offering his investment scheme, but for failing to register it. Thus, Hentzner’s crime was one of omission. “The gist of [Hentzner’s] crime was … the defendant’s failure to perform an act required by law—registering the securities before offering them to the public.”
[W]hen a crime is defined in terms of a failure to act, “the prevailing view is that one may not be held liable if one does not know the facts indicating a duty to act”. Thus, [under the law] if a person reasonably fails to perceive that his business activities fall within the securities laws, so that his failure to register is an act of reasonable inadvertence, then that person should not be guilty of a felony for failing to register.
Kinney’s case is substantially different. Kinney was charged with selling alcohol; his crime was one of commission, not omission. Kinney’s sales of alcohol did not arise through inadvertence or neglect. Moreover, it is common knowledge in our society that one is not permitted to sell alcohol without a license, and it is common knowledge in Alaska that various localities have voted themselves dry. Under these circumstances,
[w]hat is essential is not an awareness that a given conduct is a “wrongdoing” in the sense that it is proscribed by law, but rather, an awareness that one is committing the specific acts which are defined by law as a “wrongdoing”. It is … no defense that one was not aware his acts were wrong in the sense that they were proscribed by law. So long as one acts intentionally, with cognizance of his behavior, he acts with the requisite awareness of wrongdoing. In the words of Justice Holmes:
If a man intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances, he intentionally breaks the law in the only sense in which the law ever considers intent.
Ellis v. United States, 206 U.S. 246, 257 (1907).
It was not necessary for the State to prove that Kinney was aware of the bootlegging law and knew that his conduct violated that law. We therefore uphold the trial judge’s refusal to give Kinney’s proposed jury instruction.
[…]
Conclusion
The judgement of the superior court is AFFIRMED.
Concurrence of the Act and Intent
There must be a “joint operation” between the culpable mental state and prohibited conduct. This ‘joint operation’ is referred to as concurrence. While concurrence almost always occurs at the same moment, they need not be simultaneous. Instead, the two elements must causally relate – that is, the actus reus must be attributable to the mens rea. See Jackson v. State, 85 P.3d 1042 (Alaska App. 2004). This means that an innocent mistake is generally not a crime, or is an evil mind without action. Exceptions exist of course, but the general rule is that there must be a marriage between the voluntary act and the guilty mind.
Example of a Situation Lacking Concurrence
Susan decides she wants to kill her husband using a handgun. As Susan is driving to the local gun shop to purchase the handgun, her husband is distracted and steps in front of her car. Susan slams on the brakes as a reflex, but unfortunately, she is unable to avoid striking and killing her husband. Susan cannot be prosecuted for criminal homicide in this case. Although Susan had formulated the intent to kill, the intent to kill did not exist at the moment she committed the criminal act of hitting her husband with her vehicle. Susan was trying to avoid hitting her husband at the moment he was killed. Thus this case lacks concurrence of act and intent, and Susan is not guilty of criminal homicide. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/04%3A_The_Elements_of_a_Crime/4.03%3A_Criminal_Intent_%28Culpable_Mental_State%29.txt |
The last two elements are causation and harm. Simply put, the defendant must cause the requisite harm. If the defendant’s actions did not cause the resulting harm, criminal liability will likely not attach. Causation can be a nebulas concept – at its core, everything is causally related. But the law places boundaries around criminal liability. Even though a defendant may initiate a series of events that ultimately results in a particular harm, it may be unjust to hold the defendant criminally responsible. The law surrounding causation has evolved to promote fairness. In this section, we will explore factual cause and legal cause, as well as situations where the defendant may be insulated from criminal responsibility. Let’s revisit first-degree murder to see these elements in statute.
Figure 4.7 Alaska Criminal Code – Murder in the First Degree
Factual Cause
Every causation analysis is twofold. First, the defendant must be the actual cause, or the cause-in-fact, of the victim’s harm. This is routinely referred to as the “but for” test. Put another way, “but for the defendant’s act, the harm would not have occurred.” This is a relatively easy analysis – the defendant is the factual cause of the victim’s harm if the defendant’s actions started the chain of events that led to the eventual harm.
Example of Factual Cause
Henry and Mary get into an argument over their child custody agreement. Henry gives Mary a hard shove. Mary staggers backward, is struck by lightning, and dies instantly. In this example, Henry’s act (i.e. the shove) forced Mary to fall into the area where the lighting happened to strike. Henry is the cause-in-fact of Mary’s death. But for Henry shoving Mary, Mary would have lived. The more difficult question is whether it is just to punish Henry for Mary’s death. Should Henry be punished when no reasonable person could have imagined that lighting would strike Mary at the moment Henry shoved her?
Legal Cause (Proximate Cause)
The second part of the causation analysis ensures the fair application of criminal liability. In addition to being the cause-in-fact of the victim’s harm, the defendant must also be the legal or proximate cause of the harm. Proximate cause means that the defendant’s conduct must be closely related to the harm it engenders. The defendant’s conduct need not be the sole factor producing the victim’s injury. Rather, the defendant’s conduct must have been a “substantial factor” in bringing about the result. As the Model Penal Code states, the actual result cannot be “too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability”. (Model Penal Code § 2.03 (2)(b)).
The test for proximate cause is reasonable foreseeability. See e.g., Johnson v. State, 224 P.3d 105, 111 (Alaska 2010). A defendant is responsible for the natural consequences of their acts or their failure to act. Natural consequences are those consequences that are reasonably foreseeable in light of ordinary experience. The trier of fact must be convinced that when the defendant acted, a reasonable person could have foreseen or predicted that the end result would occur. For this reason, Henry from the previous example is not the legal cause of Mary’s death. A reasonable person would not have foreseen that lighting would strike Mary immediately after the shove. This is not a natural consequence in light of ordinary experience.
Example of Legal Cause
Imagine that Henry and Mary get into the same argument over their child custody agreement, but this time they are in their garage, which is crowded with furniture. Henry gives Mary a hard shove, even though she is standing directly in front of a large entertainment center filled with books and a large sixty-inch television set. Mary staggers backward into the entertainment center and it crashes down on top of her, killing her. In this situation, Henry is the factual cause of Mary’s death since he started the chain of events that led to her death with his push. In addition, it is reasonablyforeseeable that Mary might suffer a serious injury or death when shoved directly into a large and heavy piece of furniture. In this example, Henry is likely the factual and legal cause of Mary’s death. Proximate cause is ordinarily an issue for the jury.
Intervening or Superseding Cause
A related situation is the application of intervening or superseding causes. What happens when someone or something interrupts or exacerbates the chain of events started by the defendant? The law analyzes this situation through the lens of intervening or superseding causes. Typically, an intervening or superseding cause cuts off the defendant’s criminal liability. Harm that is linked to the defendant’s conduct, but is primarily caused by abnormal, unforeseeable conduct by the victim or third person, severs the casual chain.
Example of an Intervening Superseding Cause
Let’s revisit Henry and Mary. Let’s assume that Henry pulls out a knife and chases Mary out of the garage (instead of shoving her). Mary escapes and hides in an abandoned shed. Half an hour later, Wes, a homeless man living in the shed, returns from a day of panhandling. When he discovers Mary in the shed, he kills her and steals her jewelry. Although Henry is still the factual cause of Mary’s death, (i.e., but for Henry chasing Mary into the shed, Wes would not have found her), Henry is not likely the legal cause of Mary’s death. Instead, Wes is probably an intervening cause of Henry’s criminal liability – Wes interrupted the chain of events started by Henry. Thus, Wes,not Henry, will likely be prosecuted for Mary’s death (although Henry may be prosecuted only for assault with a deadly weapon).
Kusmider v. State, 688 P.2d 957 (Alaska App. 1984).
In the above example, Wes interrupted the chain of events, thereby relieving Henry of criminal liability. The following case, Kusmider v. State, addresses the situation of when a third person exacerbates the resulting harm. As you read Kusmider, ask yourself whether it is fair to hold Kusmider accountable for murder in this situation.
688 P.2d 957
Court of Appeals of Alaska.
Thomas KUSMIDER, Appellant,
v.
STATE of Alaska, Appellee.
No. 7845.
Sept. 21, 1984.
OPINION
BRYNER, Chief Judge.
Thomas Kusmider was convicted, after a jury trial, of murder in the second degree. He appeals, contending that Superior Court Judge Karl S. Johnstone erred in excluding evidence relating to the proximate cause of the victim’s death. We affirm.
On November 15, 1982, Kusmider’s girlfriend told Kusmider that an acquaintance, Arthur Villella, had sexually assaulted her. Kusmider went to Villella’s home in Anchorage. A confrontation ensued, and Kusmider shot Villella. The bullet entered Villella’s neck above the Adam’s apple. Although the wound did not sever any major arteries, it damaged smaller vessels, causing blood to drain down Villella’s windpipe.
Villella was unconscious by the time an ambulance arrived. He was attended by paramedics, who inserted a tube in his windpipe to help his breathing. En route to the hospital, however, Villella began flailing his arms and pulled the tube from his throat. Villella died approximately one hour after arriving at the hospital.
At Kusmider’s trial, a pathologist testified that Villella’s death was caused by the gunshot wound to his throat. However, the pathologist stated that the wound, while life-threatening, might have been survivable. Kusmider then asked the court for permission to present evidence on the issue of proximate cause. He argued that, if allowed to pursue the issue, he might be able to establish that Villella would have survived the gunshot wound if he had not been able to pull the tube from his windpipe. Kusmider maintained that the paramedics who transported Villella might have been negligent in failing to restrain Villella’s arms. Kusmider insisted that he was entitled to have the jury consider whether possible negligence by the paramedics constituted an intervening or superseding cause of Villella’s death, rendering the gunshot wound too remote to be considered the proximate cause of death.
Judge Johnstone precluded Kusmider from pursuing the issue of proximate cause before the jury. The judge ruled that negligent failure to provide appropriate medical assistance could not, under the circumstances, interrupt the chain of proximate causation and that, therefore, no jury issue of proximate cause had been raised by Kusmider’s offer of proof.
On appeal, Kusmider renews his argument, contending that the jury should have been permitted to hear evidence on the issue of proximate cause. We believe that Kusmider’s argument is flawed. Kusmider is correct in asserting that proximate cause is ordinarily an issue for the jury. Of course, in every criminal case the state must establish and the jury must find that the defendant’s conduct was the actual cause, or cause-in-fact, of the crime charged in the indictment. Here, testimony that Villella actually died from the gunshot wound was undisputed, and the actual cause of death was not in issue. On appeal, Kusmider does not argue that the trial court’s exclusion of evidence relating to proximate cause infringed in any way on the jury’s ability to determine actual cause.
Case law and commentators agree that, when death is occasioned by negligent medical treatment of an assault victim, the original assailant ordinarily remains criminally liable for the death, even if it can be shown that the injuries inflicted in the assault were survivable; under such circumstances, proximate cause is not interrupted unless the medical treatment given to the injured person was grossly negligent and unforeseeable.
In the present case, Kusmider offered to prove only that the paramedics who treated Villella might have been negligent in failing to restrain Villella’s arms. Kusmider did not argue that he could demonstrate gross negligence or recklessness, nor did he contend that the circumstances surrounding Villella’s death were unforeseeable. Since, as a matter of law, only grossly negligent and unforeseeable mistreatment would have constituted an intervening cause of death and interrupted the chain of proximate causation, we conclude that Judge Johnstone did not err in excluding evidence relating solely to the issue of negligence by the paramedics who treated Villella.
Even assuming Kusmider had offered to prove that the conduct of the paramedics was both unforeseeable and grossly negligent, we would still conclude that the trial court correctly excluded the evidence relating to proximate cause. In cases involving death from injuries inflicted in an assault, courts have uniformly held that the person who inflicted the injury will be liable for the death despite the failure of third persons to save the victim. One commentator notes:
“The question is not what would have happened, but what did happen,” and there can be no break in the legally-recognized chain of causation by reason of a possibility of intervention which did not take place, because a “negative act” is never superseding. Moreover, an injury is the proximate cause of resulting death although the deceased would have recovered had he been treated by the most approved surgical methods, or by more skillful methods, or “with more prudent care,” or “with a different diet and better nursing,” or “with proper caution and attention.” The same is true even if the injured person did not take proper care of himself, or neglected to obtain medical treatment, or delayed too long in doing so, or refused to submit to a surgical operation despite medical advice as to its necessity.
R. Perkins & R. Boyce, Criminal Law § 9 at 799–800 (footnotes omitted).
Here, Kusmider did not claim that the conduct of the paramedics inflicted any new injuries on Villella nor did he even assert that the paramedics aggravated the injuries inflicted by the gunshot wound. Rather, the gist of his claim was that negligence in failing to restrain Villella’s arms enabled Villella to disrupt the apparently successful emergency treatment that he had begun to receive. Thus, in support of his argument that proximate cause had been interrupted, Kusmider attempted to rely exclusively on the proof of a negative act: that the paramedics negligently failed to take adequate precautions to restrain Villella. Since Kusmider never offered to prove that the paramedics engaged in any affirmative conduct that might have aggravated Villella’s injuries and hastened his death, he could not, as a matter of law, have established a break in the chain of proximate cause, even if he could have shown that the paramedics committed gross and unforeseeable negligence by their failure to act. In short, no matter how negligent the paramedics may have been in failing to prevent Villella’s death, it is manifest that the gunshot fired by Kusmider remained a substantial factor—if not the only substantial factor—in causing Villella’s death. No more is required for purposes of establishing proximate cause.
Because the evidence proffered by Kusmider could not, as a matter of law, have established a break in the chain of proximate causation, we hold that Judge Johnstone did not err in excluding this evidence from trial.
The judgment of conviction is AFFIRMED.
Exercises
Answer the following question. Check your answer using the answer key at the end of the chapter.
1. Phillipa sees Fred picking up trash along the highway and decides she wants to frighten him. She drives a quarter of a mile ahead of Fred and parks her car. She then hides in the bushes and waits for Fred to show up. When Fred gets close enough, she jumps out of the bushes screaming. Frightened, Fred drops his trash bag and runs into the middle of the highway where he is struck by a vehicle and killed. Is Phillipa’s act the legal cause of Fred’s death? Why or why not? | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/04%3A_The_Elements_of_a_Crime/4.04%3A_Causation_and_Harm.txt |
Summary
All criminal offenses are made up of multiple parts, often referred to as elements. The essential criminal elements of the majority of criminal laws are (1) actus reus (voluntary act), (2) mens rea (culpable mental state), (3) concurrence, (4) causation, and (5) harm. Inchoate offenses, also known as anticipatory crimes, do not contain a causation or harm element.
The criminal act must be voluntary or controllable and cannot consist solely of the defendant’s status or thoughts. Just one voluntary act is needed for a crime, so if a voluntary act is followed by an involuntary act, the defendant can still be criminally responsible. A person may be held criminally responsible for failing to act if there is a duty to act based on a statute, contract, special relationship, or assumption of the duty. Possession may be passive, but it is still a criminal act. Possession can be actual, constructive, sole, or joint. Fleeting possession may not be criminal if the possession is momentary and with the intent to surrender.
Culpable mental state is an important element because it is often one factor considered in the grading of criminal offenses. Motive should not be confused with or replace intent. Motive is the reason the defendant develops criminal intent. At common-law, there were three criminal intents: malice aforethought, specific intent, and general intent. Malice aforethought is acting with an intent to kill. Specific intent is the intent to bring about a particular result. General intent is the intent to do the act and can often give rise to an inference of criminal intent from proof of the criminal act. Alaska law describes five criminal states of mind, which are intentionally, knowingly, extreme recklessness, recklessly, and criminal negligence. Intention is having a conscious objective to cause a particular result. Knowingly is the awareness that results are practically certain to occur. Extreme Recklessness is having an extreme indifference to the value of human life. Extreme recklessness is not defined by statute, but instead as a creature of case law. Recklessly is a subjective awareness of a risk of harm and an unjustified disregard of that risk. Criminal negligence is not being aware of a substantial risk of harm when a reasonable person would be. Offense elements, including specified attendant circumstances, may require different mental states. If so, the prosecution must prove each mental state for every element beyond a reasonable doubt.
Strict liability crimes do not require an intent element and are generally regulatory or public welfare offenses, with less severe punishment.
Concurrence is also a criminal element that requires the criminal act and criminal intent exist close in time.
The defendant must cause the resulting harm to be criminally responsible. The defendant must be the factual and legal cause. Factual cause means actual cause – that is, the defendant started the chain of events that leads to the bad result. Legal or proximate cause means that the resulting harm was reasonably foreseeable when the defendant committed the criminal act. The defendant need not be the sole factor in the victim’s harm, but must be a substantial factor in the resulting harm. An intervening or superseding cause breaks the chain of events started by the defendant’s criminal act and insulates the defendant from criminal liability. A negative act by the victim or third party (e.g. the failure of a third party to save a victim) can never be an intervening cause.
Key Takeaways
• The elements of a crime are actus reas, mens rea, concurrence, causation, and harm. Some criminal offenses have attendant circumstances. Inchoate offenses do not have the elements of causation and harm.
• The actus reas is a criminal act usually involving an unlawful bodily movement that is defined in a statute.
• The criminal act must be voluntary and cannot be based solely on the status of the defendant or the defendant’s thoughts.
• An exception to the criminal act element is an omission to act.
• Omission to act could be criminal if there is a statute, contract, assumption of duty, or special relationship that creates a legal duty to act in the defendant’s situation.
• Actual possession means that the item is on or very near the defendant’s person. Constructive possession means that the item is within the defendant’s control, such as inside a house or vehicle with the defendant.
• One important function of intent is the determination of punishment. In general, the more evil the intent, the more severe the punishment.
• The three common-law criminal intents ranked in order of culpability are malice aforethought, specific intent, and general intent.
• Specific intent is the criminal intent to bring about a certain result. General intent is simply the intent to perform the criminal act.
• Motive is the reason the defendant commits the criminal act. Motive standing alone is not enough to prove criminal intent.
• There are five mental states ranked in order of culpability: intentionally, knowingly, extreme recklessness, recklessly, and criminally negligence. Intentionally is similar to specific intent to cause a particular result. Knowingly is the awareness that results are practically certain to occur. Extreme recklessness is the extreme indifference to the value of human life. Recklessly is a subjective awareness of a risk of harm, and an objective and unjustified disregard of that risk. Criminally negligence is not being aware of a substantial risk of harm when a reasonable person would be.
• The exception to the requirement that every crime contain a criminal intent element is strict liability.
• Concurrence requires that act and intent exist close in time.
• Factual cause means that the defendant started the chain of events leading to the harm. Legal cause means that the defendant is held criminally responsible for the harm because the harm is a foreseeable result of the defendant’s criminal act.
• An intervening or superseding cause breaks the chain of events started by the defendant’s act and cuts the defendant off from criminal responsibility.
Answer to You Be the Judge …
Punishing a person for being homeless is the equivalent of punishing someone for being an addict. If a city does not have adequate shelter for the homeless community, sleeping on public property is not voluntary – it is involuntary just like eating or breathing. In Martin v. City of Boise, 920 F.3d 584, 615 (9th Cir. 2019), the Ninth Circuit found that the Eighth Amendment prohibited the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter. The City of Boise’s criminal ordinances could not be enforced against individuals that had no alternative but to sleep on the street. However, sitting, sleeping, or lying on public property is an act that can be prohibited provided that it is voluntary. Read Martin v. City of Boise, 920 F.3d at 617 n. 8, for an explanation of when a city can prosecute a person for sleeping in public.
Answers to Exercises
From “Criminal Elements”
1. Jacqueline can be convicted of a crime in this situation. Although an epileptic seizure is not a voluntary act, Jacqueline’s conduct in driving while aware that she has epilepsy is. Only one voluntary act is required for a crime, and Jacqueline was able to control her decision making in this instance. Punishing Jacqueline for driving with epilepsy could specifically deter Jacqueline from driving on another occasion and is appropriate under the circumstances. See e.g., People v. Decina, 138 N.E.2d 799 (N.Y. 1956) (finding a voluntary act when the defendant, knowing he might, at any time, be subject to epileptic attacks and seizures, drove an automobile with nobody accompanying him, suffered a seizure, and caused a fatal collision). This is sometimes referred to as the defense of “automatism”. The automatism defense is a failure-of-proof defense and excludes responsibility where a defendant “acts” during reflexive or convulsive movements, movements during sleep, unconsciousness, hypnosis, or seizures. See e.g., Palmer v. State, 379 P.3d 981, 989 (Alaska App. 2016) (noting that Alaska courts have yet to define the contours of “automatism” under Alaska law).
From “Causation and Harm”
1. Phillipa’s act is the factual and legal cause of Fred’s death. Phillipa’s act of jumping out of the bushes and screaming caused Fred to run onto the highway, so Phillipa’s act is the factual cause of Fred’s death. In addition, a reasonable person could foresee that frightening someone next to a major highway might result in them trying to escape onto the highway, where a vehicle traveling at a high rate of speed could hit them. Thus Phillipa’s act is also the legal cause of Fred’s death. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/04%3A_The_Elements_of_a_Crime/4.05%3A_End-of-Chapter_Material.txt |
It is not uncommon that multiple individuals will come together to commit a single crime. When multiple individuals jointly participate in a single criminal act, an issue arises as to who is responsible for which crime and to what degree. Generally speaking, this is referred to as accomplice liability. This chapter explores two situations in which multiple parties may be liable for a crime – complicity and vicarious liability. When individuals work together with a common criminal purpose they act with complicity. Individuals who assist in the commission of a crime will be held responsible to the same extent as the primary actor. Unlike complicity, vicarious liability imposes criminal liability on a defendant because of a special relationship between the principal perpetrator and the defendant.
Accomplice Liability
At early common law, parties to crime were divided into four categories.
1. Principal in the first degree, a person who committed the crime – that is, the actual, primary perpetrator of the crime.
2. Principal in the second degree, a person who was present at the scene and assisted the primary actor in the commission of the crime.
3. Accessory before the fact, an individual who was not present at the scene of the crime, but helped the primary perpetrator prepare its commission.
4. Accessory after the fact, a person who assisted the primary perpetrator after the crime (i.e., comfort, aid, concealment, etc.).
Most jurisdictions have abolished these distinctions and instead divide accomplice liability into two categories: accomplices and accessories. Under modern trends, principals and accomplices share equally in criminal responsibility; no distinction is made to separate the primary perpetrator and those individuals who assist the principal before or during the crime. AS 11.16.100. Accessories, on the other hand, are treated differently. Accessories are individuals who provide assistance after the crime was committed – these individuals are generally criminally liable for a separate, lesser offense.
Accomplice Liability Rationale
Accomplices are held criminally responsible to the same extent as the principal. In Alaska, this concept is referred to as legal accountability. AS 11.16.100. For purposes of legal accountability, it is immaterial whether the elements of a crime are satisfied by the defendant’s own behavior, by the behavior of another person for which the person is accountable, or both. This is because accomplice liability is derivative; when two individuals act in concert to commit a crime, they act as a single criminal in the eyes of the law. The policy for such a broad rule is three-fold: first, an individual who willingly participates in criminal activity should be responsible for the ultimate harm caused. The adage “in for a penny, in for a pound” summarizes the policy well. A criminal offense is more likely to be successful with more confederates. Second, the law presumes there is a deterrent effect from shared criminal liability – if the accomplice knows that she will be held accountable to the same extent as the principal, the accomplice may choose to not participate. Finally, it is believed that society should not bear the burden of determining who is the primary perpetrator and who is an accomplice – for purposes of establishing liability, hypertechnical categories are less important. Everyone agrees a crime was committed.
Although the law treats principals and accomplices equally for purposes of culpability, the law allows judges to treat principals and accomplices differently for purposes of sentencing. See e.g., AS 12.55.155(d)(2). Thus, it is not uncommon that an accomplice will receive a more lenient punishment than that of a principal.
Example of Accomplice Liability
Bob and Sue are close friends, and both are in need of a little extra spending cash. Bob approaches Sue and tells her that the local hardware store has lax security and would be easy to rob. Bob suggests that they both walk into the store before closing and demand all of the money from the cash register. Bob tells Sue that he has been watching the place for several weeks and there are generally few customers in the store around closing time. Further, Bob assures Sue that no one will get hurt; they won’t use real guns. Instead, Bob suggests they use plastic lookalike guns. Sue balks, telling Bob that she doesn’t want to go into the store. Sue tells Bob that she’ll help but only by driving the car. She tells Bob that she will drop him off in front of the door shortly before closing time and keep the car running. Once Bob gets the money, he can jump into the vehicle. The next day, the robbery occurs exactly as Sue suggested – that is, Bob robs the hardware store and Sue acts as the getaway driver. In this example, both Bob and Susan are guilty of Robbery in the First Degree. The law does not distinguish between principals and accomplices. Susan will not escape criminal liability simply because she was the getaway driver.
Accomplice Actus Reus
Although accomplice liability is broad, it is not limitless. One of the central components of accomplice liability is that an accomplice must voluntarily act in some manner to aid or abet in the planning or commission of the offense. The term “aid or abet” means to help, assist, facilitate, or counsel another person. AS 11.16.110. Examples of actions that qualify as aiding or abetting a criminal act are helping plan the crime, driving a getaway vehicle after the crime’s commission, and luring a victim to the scene of the crime.
However, neither mere presence at a scene of a crime, nor concealment of one’s knowledge about a crime, is sufficient to ground criminal liability. The law requires the accomplice to engage in a voluntary act that demonstrates their assistance.
Example of a Case Lacking Voluntary Act
Remember Clara and Linda from Chapter 1 and their joint shopping trip? In that example, Clara and Linda go on a shopping spree. Linda insists that they browse an expensive department store. After they enter the lingerie department, Linda surreptitiously places a bra into her purse. Clara watches, horrified, but does not say anything, even though a security guard is standing nearby. As Linda and Clara leave the store, an alarm is activated. Linda and Clara run away with the security guard in pursuit. In this case, Clara has probably not committed a voluntary act required for accomplice liability. Although Clara was present at the scene of the crime (theft) and did not alert the security guard, mere presence at the scene is not sufficient to constitute accomplice criminal liability. Clara fled the scene when the alarm went off, but her presence at the scene of a crime combined with flight is still not enough to comprise the accomplice criminal act. Thus, only Linda is subject to criminal prosecution for this offense. Clara should not be prosecuted.
Miller v. State, 866 P.2d 130 (Alaska App. 1994)
In the following case, take notice of how difficult it can be for the government to prove which actor is a principal and which actor is an accomplice. As you will see, the law makes no distinction.
866 P.2d 130
Court of Appeals of Alaska.
George L. MILLER, Appellant,
v.
STATE of Alaska, Appellee.
No. A–3954.
Jan. 7, 1994.
OPINION
BRYNER, Chief Judge.
George L. Miller was convicted, following a jury trial, of first-degree robbery. Superior Court Judge Mark C. Rowland sentenced Miller to fifteen years’ imprisonment. Miller appeals, claiming that the trial court … misinstructed the jury on accomplice liability. We affirm.
FACTS
In 1987, David and Mavis McClurg owned and operated a gold mine in northwest Alaska, near Kotzebue. They lived in Anchorage with their fifteen-year-old daughter Jackie and ran a jewelry shop in their house.
On September 21, 1987, Jackie McClurg was staying at the house while her parents were at the mine. In the evening, she got a phone call from a man who said he needed to drop off some papers for her father. Shortly after 10:00 p.m., a car pulled into the McClurgs’ driveway, and a man wearing a red hat got out and came to the front door. As Jackie opened it, the man grabbed her, turned her around, and told her that he had a gun and this was a robbery. A second, shorter man followed the first man into the McClurg home. The men forced Jackie to take them downstairs to the jewelry shop, where they tied her up and began taking jewelry.
Just then, Belinda Nix and Gary Greener, friends of the McClurgs, drove up to the house. As Nix and Greener approached, they saw an unfamiliar car with a man behind the wheel in the driveway; the driver honked the horn and started to drive away.
Nix and Greener went into the house, where they saw the second, shorter man heading out the back entrance near the shop. Then the first, taller man pushed his way past Greener and went out the front door. Nix and Greener heard Jackie call out and found her tied up in the shop. They called the Alaska State Troopers, who eventually determined that more than \$50,000 in gold and jewelry had been taken by the robbers.
Jackie McClurg identified the taller man as Dan Finnigan, a former employee at the McClurg mine. Earlier that day, Finnigan had come to the McClurgs’ house and had tried unsuccessfully to collect wages for his work at the mine. Finnigan matched descriptions given the troopers by Nix and Greener.
Several days later, on September 24, 1987, the troopers arrested Finnigan for the robbery. They also arrested a friend of Finnigan’s, Randy Ringler, whom they suspected as the second, shorter robber. Greener and Nix later identified Finnigan and Ringler as the two men they had seen in the McClurg’s house.
In October of 1987, the troopers received word that a woman named Neva Johnson had been seen wearing a watch stolen from the McClurgs’ shop. On October 21, 1987, they contacted Johnson, who said that her boyfriend, Michael Casalichhlio had given her the watch. When contacted by the troopers, Casalichhlio denied being involved in the robbery but turned over several stolen items that he admitted receiving from George Miller.
Casalichhlio eventually implicated Miller as the driver of the getaway car in the robbery. Casalichhlio also revealed that, soon after the robbery was committed, he accompanied Miller on an airline trip to Florida, using tickets purchased with robbery proceeds. The troopers also located two other friends of Miller, Aaron and Sue Foltz, to whom Miller had admitted participating in the robbery. Before the robbery, Aaron and Sue Foltz had also heard Miller planning the crime.
Information given to the troopers by Casalichhlio and the Foltzes also indicated that, prior to the robbery, Miller and Casalichhlio had engaged in a joint venture trafficking cocaine that Casalichhlio had obtained through a burglary involving a cocaine dealer. Casalichhlio evidently furnished the drugs to Miller, who was responsible for selling them; he would then share the proceeds with Casalichhlio. Finnigan, and to a lesser extent Ringler, had worked for Miller as runners, delivering cocaine and collecting money. Miller and Casalichhlio had planned to use profits from their cocaine sales to finance a trip to Florida, where they intended to buy two additional kilograms of cocaine for resale in Alaska. Miller, however, had begun to use cocaine heavily himself and had failed to collect enough money in sales to keep current on his payments to Casalichhlio. Prior to the McClurg robbery, he had become indebted to Casalichhlio for between \$4,000 and \$4,500. Finnigan, in turn owed a substantial sum of money to Miller. When it became apparent that there would be insufficient funds to finance the trip to Florida for additional cocaine, Miller hit upon the idea of the McClurg robbery as an alternative means to finance the Florida trip.
Based on the foregoing information, the state secured indictments charging Miller, Finnigan, and Ringler with the McClurg robbery and Casalichhlio with theft for receiving property stolen in the robbery. When the indictments were issued, Miller, who had never returned to Alaska from his trip to Florida, remained at large. Finnigan, Ringler, and Casalichhlio were tried and convicted.
Soon after the trial ended, however, Ringler wrote Finnigan a letter in which he (Ringler) acknowledged his own participation in the McClurg robbery but proclaimed Finnigan’s innocence. Ringler identified himself as the second, shorter man in the robbery and claimed that the first, taller man had been Miller, not Finnigan. According to Ringler’s letter, the driver of the getaway car had been someone named “Bill,” whose last name he did not know.
As a result of Ringler’s letter, Finnigan was awarded a new trial. Before the second trial, Miller, who had been arrested in Texas on a fugitive warrant, was extradited to Alaska. His trial was consolidated with Finnigan’s second trial. At trial, the state relied primarily on its original theory of the case—that Finnigan had been the taller of the two robbers who entered the McClurg home and that Miller had been the getaway driver and had masterminded the robbery. Finnigan, relying on Ringler, defended on the theory that Miller had been the taller robber and that another, unknown man had driven the getaway car. Although Miller did not testify or present witnesses, he attempted to establish that none of the state’s evidence against him was sufficiently credible to prove his participation in the robbery.
INSTRUCTIONS ON ACCOMPLICE LIABILITY
Miller contends that the trial court’s instructions on accomplice liability were deficient. Miller was evidently indicted on the theory that he was the getaway driver in the robbery. At trial, an element of confusion as to Miller’s role arose when Ringler testified that Miller and Ringler had entered the McClurg house together, that a third man named “Bill” had driven the getaway car, and that Finnigan was entirely innocent of the alleged crime.
In an attempt to address this problem, the state sought jury instructions allowing Miller to be convicted as either an accomplice (for being the driver) or as a principal (for being one of the two men who had entered the house). The trial court, while initially receptive, ultimately decided that, since Miller had been indicted as an accomplice for driving the getaway car, he could be convicted only on that theory. [This decision was incorrect.]
[…]
Although Miller concedes on appeal that [the] instruction conforms with Alaska Pattern Jury Instruction 16.100–.110(2) … he claims … that the instruction was so vague that it allowed his conviction as a principal.
We find this argument meritless. Miller in effect posits that the jury might have convicted him as an accomplice for being a principal: he reasons that, under the challenged instruction, the jury might have found that he was one of the men who entered the McClurg house, might have concluded that the two robbers aided and abetted each other, and so might have convicted him as an accomplice.
This theory proceeds from a strained interpretation of the evidence and an attenuated reading of the challenged instruction. Moreover, the theory is premised on a fundamentally flawed view of accomplice liability, for it mistakenly assumes that a defendant indicted as an accomplice must be convicted as an accomplice and that it would therefore have been error to allow the jury to convict him as a principal.
However, the legal distinction between principals and accomplices has long been abrogated in Alaska. It is well-settled that a defendant charged as a principal may be convicted as an accomplice; the converse is also true.
Here, the trial court, evidently accepting Miller’s argument that a contrary result would be legally impermissible, sought to limit the state to the original theory upon which it indicted Miller: that Miller was guilty of robbery as an accomplice for driving the getaway car. As a matter of law, however, Miller was properly subject to conviction as either a principal or as an accomplice. Hence, even if the jury instructions did not succeed in narrowing the charge to accomplice liability and allowed Miller to be convicted as a principal, plain error could not be found.
CONCLUSION
The conviction and sentence are AFFIRMED.
Accomplice Mens Rea
The culpable mental state required for accomplice liability varies, depending on the jurisdiction. In Alaska, accomplice liability is a dual intent crime. The accomplice must intend to promote or facilitate the commission of the crime, and act with the underlying culpable mental state (i.e., intentionally, knowingly, or recklessly) with respect to the harm caused. AS 11.16.110. In other words, the accomplice need not share the principal’s criminal purpose, but must intend to promote or facilitate the commission of the principal’s conduct. While this may seem like an overly complicated proposition, such a result is necessary given that there is no distinction between principals and accomplices.
Example of Accomplice Culpable Mental State
Riley and another man, Portalla, opened fire on an unsuspecting crowd of young people who were socializing around a bonfire on the Tanana River near Fairbanks. Two of the young people were seriously wounded. The investigators could not determine which firearm fired the wounding shots. The bullet recovered from the body of one victim was so deformed that it could not be matched to either Riley’s or Portalla’s weapon, and the bullet that wounded the other victim passed through the victim’s body and was never recovered. In short, the government could not prove which individual – Riley or Portalla – injured the victims, but the government could conclusively prove that the injuries were inflicted by one of the two. Under this scenario, both Riley and Portalla are guilty of first-degree assault. The prosecution is not required to prove which defendant fired a particular bullet. Instead, the prosecution must prove that (1) Riley solicited, encouraged, or assisted Portalla’s act of shooting at the victims, and (2) that Riley did so with the intent to promote or facilitate the conduct (or vice versa). To learn more about how the court described the dual culpable mental states with regards to accomplice liability, read Riley v. State, 60 P.3d 204 (Alaska App. 2002).
You be the Judge… (5.1)
Jim and Fred work together in a local warehouse and they have a long-standing hatred toward each other. One day the animosity boils over and Fred challenges Jim to a fight; they start pushing and shoving each other. Several of their co-workers see the pushing and shoving and form a circle around them, enjoying the affray. The co-workers loudly encourage Jim and Fred to fight – yelling suggestions like “punch him!”, “kick him!”, and “don’t stop! Finish him.” Jim eventually gets the better of Fred, punching him squarely in the temple. Fred falls to the ground, striking a piece of machinery. Fred dies as a result of blunt force trauma to his head. Jim is charged with manslaughter (for recklessly causing the death of Fred). Are the co-workers accomplices to the manslaughter? Check your answer using the answer key at the end of the chapter.
The Natural and Probable Consequences Doctrine
The crux of accomplice liability is that the principal’s blameworthiness is imputed to the accomplice to ensure fair accountability of all criminal actors. Accomplice liability can be far reaching – a person who encourages or facilitates the commission of a crime will be held as an accomplice for the specific crime aided, but also for crimes that are the natural and probable outcome of the criminal conduct. An accomplice is responsible for all reasonably foreseeable crimes committed in furtherance of the criminal enterprise. This doctrine is similar to the foreseeability standard discussed with legal causation. Under the natural and probable consequences doctrine, if the defendant assists the principal with the intent to further a specific crime’s commission, and the principal commits a different but foreseeable crime during the defendant’s assistance, the defendant could be liable as an accomplice for the new crime. Several jurisdictions have rejected this doctrine as an overly harsh extension of accomplice liability, but as you will see below, Alaska has not.
Belarde v. State, 383 P.3d 655 (Alaska 2016)
As you read the following case consider whether it is fair to hold the defendant responsible for first-degree robbery given his claim that he did not know that his co-defendant was armed with a pistol. Is robbery a foreseeable crime when the original crime was shoplifting? Should a defendant’s guilt as an accomplice to one crime act as a per se basis for holding him accountable for a related, but unintended crime? Also, it should be noted that although the Belarde court discusses the applicability of the natural and probable consequence doctrine, it choose to affirm the defendant’s conviction on different grounds, beyond the scope of this section.
383 P.3d 655
Court of Appeals of Alaska.
Jesse Cecil BELARDE, Appellant,
v.
STATE of Alaska, Appellee.
No. A–11321.
May 20, 2016.
OPINION
Judge, MANNHEIMER.
Jesse Cecil Belarde and two friends, Rolando Barlow and Robert Smith, entered an Anchorage Fred Meyer store for the purpose of stealing a battery for Belarde’s car.
(Belarde’s car had recently broken down, and it was inoperable unless the battery was recharged. After concluding that it would take too long to recharge the battery, Belarde borrowed another car, and he and his friends went looking for a battery to steal.)
Inside the Fred Meyer store, Belarde went to the car battery section and identified the correct battery for his vehicle. His friend Smith then picked up the battery and attempted to carry it out of the store (without paying).
Two of the store’s loss-prevention employees intercepted Smith in the arctic entry. Smith dropped the battery and punched one of the employees in the face. Belarde’s other friend, Barlow, then hit the other loss-prevention employee in the face. At this point, Smith pulled a pistol from his waistband, chambered a round, and ordered the loss-prevention employee to back away. Belarde then picked up the battery from the floor, and he and his friends left the store (with the battery).
Based on this incident, Belarde was convicted of both the theft of the battery and first-degree robbery. The robbery charge was based on the theory that Belarde and his accomplices took the battery from the immediate presence of the store employees through the use of force (the basic crime of second-degree robbery as defined in AS 11.41.510(a)), and by threatening the employees with a pistol (thus elevating the crime to first-degree robbery as defined in AS 11.41.500(a)).
In this appeal, Belarde argues that his first-degree robbery conviction must be reversed because his jury was misinstructed regarding the rules for when one accomplice to a crime (in this case, Belarde) can be held legally accountable for the intentions of another accomplice to the crime (in this case, Smith).
[…]
A more detailed look at Belarde’s claim on appeal
Belarde acknowledges that he was properly found guilty of stealing the car battery. (In fact, when Belarde’s trial attorney delivered his summation to the jury, he conceded that Belarde should be convicted of theft.) But Belarde argues that his robbery conviction should be reversed because of a faulty clause in the jury instruction on the elements of first-degree robbery.
Belarde’s attack on the jury instruction is based on the defense that he offered at trial. Belarde testified that, when he picked up the battery and ran out of the store, he was unaware that Smith had used a pistol to threaten the employees.
(Belarde asserted that he had been using his mobile phone as he walked out of the store, and thus his attention was initially distracted away from the fight that occurred between Smith, Barlow, and the two loss-prevention employees. Belarde declared that he remained unaware that Smith had used the pistol until they were driving away from the store, when he listened to Smith and Barlow recounting the events that had just occurred.)
Turning to the jury instruction on the elements of first-degree robbery, paragraph 3 of this instruction told the jurors that the State was required to prove that “[Belarde] or another participant intended to prevent or overcome … resistance to the taking of the property [by using force]”. (Emphasis added) Pointing to this italicized language, Belarde argues that this jury instruction improperly deprived him of his defense to the first-degree robbery charge—because this instruction told the jurors that, as long as Smith intended to accomplish the taking by armed force (i.e., by threatening the store employees with a pistol), it did not matter whether Belarde personally intended to accomplish the taking by force.
[…]
The “natural and probable consequences” theory of accomplice liability
Belarde’s argument ignores the criminal law doctrine that a person who participates in a joint criminal enterprise (such as the theft in this case) is deemed to intend the natural and probable consequences of that enterprise—including any reasonably foreseeable related criminal offenses committed by the person’s accomplices.
As the California Supreme Court explained in People v. Prettyman, 926 P.2d 1013, 1019–1020 (1996):
At common law, a person encouraging or facilitating the commission of a crime could be held criminally liable not only for that crime, but for any other offense that was a “natural and probable consequence” of the crime aided and abetted.
Although legal commentators have questioned whether it is proper to hold accomplices liable for all reasonably foreseeable crimes committed in pursuance of a criminal enterprise, most courts adhere to the “natural and probable consequences” doctrine. See Wayne R. LaFave, Substantive Criminal Law (2nd ed.2003), § 13.3(b), Vol. 2, pp. 360–63 (criticizing the doctrine but describing it as the “established rule”). And under this doctrine, if the jury concluded that it was reasonably foreseeable that Smith would threaten the loss-prevention officer with a firearm, then Belarde could properly be found guilty of first-degree robbery.
There is no Alaska case expressly adopting the “natural and probable consequences” doctrine of accomplice liability. And, in any event, it is a jury question whether an accomplice’s crime was “reasonably foreseeable” under the facts of a given case—and Belarde’s jury was not asked to resolve this question.
The foregoing discussion of the “natural and probable consequences” doctrine is relevant only because Belarde’s attack on the jury instruction is raised as a claim of plain error. That is, Belarde must show that it was obvious error for the trial judge to instruct the jurors that Belarde could be convicted of robbery if any participant in the theft (Belarde or Smith or Barlow) used force or threatened the use of force to prevent or overcome resistance to the theft of the battery. The “natural and probable consequences” doctrine is the predominant rule in American jurisdictions; and under this doctrine, the challenged jury instruction was not obvious error—indeed, it was not error at all—so long as the jurors found that Belarde’s accomplice’s use of force was reasonably foreseeable.
But to resolve Belarde’s case, we need not decide whether to adopt the “natural and probable consequences” doctrine of accomplice liability—because there is a second, more case-specific reason why we conclude that the challenged jury instruction was not plain error.
[…]
Conclusion
The judgement of the superior court is AFFIRMED.
Prosecution of an Accomplice When the Principal Is Not Prosecuted or Is Acquitted
Although accomplice liability is derivative, ultimate responsibility is not. The principal need not be found guilty (or even prosecuted) for accomplice liability to attach. See AS 11.16.110(a)(2); Vaden v. State, 768 P.2d 1102, 1106 (Alaska 1989) cert. denied 490 U.S. 1109 (1989). The focus is on the accomplice’s conduct, rather than the principal’s conduct. In Vaden, the Alaska Supreme Court found that a professional guide could be convicted as an accomplice to hunting violations when the principal was an undercover government agent. The government agent was immune from prosecution, whereas the hunting guide was not. See id. Thus, a defendant can be liable for a crime even though he did not commit it and the defendant who did was spared prosecution or found not guilty.
Example of Prosecution of an Accomplice When the Principal Is Not Prosecuted
Sam shows up drunk at his friend Abel’s house and tells Abel he wants to “get retribution” from his ex-girlfriend Maria. Sam wants to break into Maria’s house and steal a set of diamond earrings he gave Maria the previous Christmas. Sam asks Abel to drive him to Maria’s house, and Abel promptly agrees. Abel drives Sam to Maria’s house and waits in the car with the engine running. Sam breaks into Maria’s house, sneaks into her jewelry box, and recovers the earrings. Abel drives Sam away from the house. Before they get far, police stop Abel’s car and transport both to the police station for questioning. They are taken to separate rooms for interrogation. The police officer who interrogates Sam is a rookie and forgets to read Sam his Miranda rights. Abel, in the next room, confesses to the entire plan after being advised of his Miranda rights. Maria refuses to cooperate as she fears reprisal from Sam. The district attorney decides not to prosecute Sam because of the tainted interrogation. In this case, Abel could still be prosecuted for burglary and theft as an accomplice even though Sam is not prosecuted.
Accomplice Liability – Renunciation
An accomplice can escape criminal liability if the accomplice “renounces” her criminal conduct before the crime is completed. See AS 11.16.110(a)(1) Renunciation is an affirmative defense to accomplice liability. Criminal defenses will be explored in detail in subsequent chapters, but for now, remember that an accomplice can avoid prosecution if (1) the accomplice terminates her participation before the crime is committed; (2) the termination is a voluntary and complete renunciation, and (3) she timely warns law enforcement or takes reasonable efforts to prevent the crime. A mere “change of heart” is insufficient. Renunciation is not “voluntary and complete” if it is motivated because she thinks the crime has been detected by law enforcement or that she is simply postponing the crime until a future time. See Hale v.State, 764 P.2d 313 (Alaska App. 1988).
Exercises
Answer the following question. Check your answer using the answer key at the end of the chapter.
1. Justin asks his girlfriend Penelope, a bank teller, to let him know what time the security guard takes his lunch break so that he can successfully rob the bank. Penelope tells Justin the security guard takes his break at 1:00. The next day, which is Penelope’s day off, Justin successfully robs the bank at 1:15. Has Penelope committed robbery? Why or why not? | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/05%3A_Parties_to_Crime_(Accomplice_Liability)/5.01%3A_Accomplice_Liability.txt |
Vicarious liability imposes criminal responsibility on a defendant on the basis of a special relationship. Under vicarious liability, the defendant need not commit the criminal conduct. Instead, the defendant simply needs to be involved with the primary criminal actor in a legally defined relationship. Vicarious liability is common in civil law and is generally applied to impute liability to employers for the actions of their employees. Generally speaking, criminal law disfavors criminal vicarious liability, the exception being organizational liability. Criminal vicarious liability is available to hold legal organizations (e.g., corporations) criminally accountable for specific criminal acts of their agents. AS 11.16.130.
Vicarious liability should not be confused with accomplice liability. Accomplice liability is based on the defendant’s complicity (participation) in a criminal enterprise. Vicarious liability is also different than strict liability. Strict liability requires the defendant to personally engage in the criminal conduct. Vicarious liability imputes a defendant’s criminal responsibility to a different defendant because of a legal relationship. Similar to accomplice liability, however, the primary defendant remains criminally responsible for his conduct.
At early common law, corporations were not criminally responsible for the unauthorized criminal acts of their employees. Modern criminal codes have moved away from this rule and recognize that businesses entities are private enterprises able to control the actions of its agents. Failure to control an agent’s actions can seriously injure other individuals and the economy. The resulting blameworthiness should be shared between corporations and agents, alike. Alaska law holds a corporation criminally liable for the conduct of its agents under two circumstances: (1) the principal was an agent and the criminal offense was within the scope of the agent’s employment; or (2) the organization solicits the agent’s conduct or subsequently ratifies (adopts) the agent’s criminal conduct.
Vicarious criminal liability is not limitless. First, not all business entities are organizations; sole proprietorships are excluded. AS 11.81.900(b)(44). Second, not all corporate employees are “agents.” AS 11.16.130(b). Agents only include high managerial employees that are engaged in the active management of a corporation. High managerial employees include directors, officers, or specific employees authorized to act on behalf of the corporation. Low-level employees are normally excluded. Also, a corporation does not ratify or adopt an agent’s criminal conduct when it merely tolerates the misconduct. Ratification or adoption requires both an awareness of the criminal conduct and some action that demonstrates ratification or adoption. See State v. Greenpeace, Inc., 187 P.3d 499, 506 (Alaska App. 2008).
The criminal punishment for a corporation is generally the payment of a fine; a corporation cannot be imprisoned. See generally AS 12.55.035.
Example of Corporate Liability
Harry, a vice-president of human resources of Burger King Corporation, shreds corporate documents in his office when Burger King is sued civilly for sexual harassment in a million-dollar lawsuit. Under the theory of criminal vicarious liability, both Harry and Burger King could be criminally prosecuted for Falsifying Business Records, a class C felony. AS 11.46.630. Note that Burger King’s liability is vicarious and depends on its relationship with Harry as an agent and the fact that Harry is acting within the scope of employment. Vicarious liability is distinguishable from accomplice liability, where the accomplice must be complicit with the criminal actor. The owners of Burger King, who are the corporate shareholders, did not actively participate in Harry’s conduct, although they will share in the punishment if the corporation is fined.
Exercises
Answer the following questions. Check your answers using the answer key at the end of the chapter.
1. Brad, the president and CEO of ABC Corporation, recklessly hits and kills a pedestrian as he is driving home from work. Could ABC Corporation be held vicariously liable for criminal homicide? Why or why not?
2. Read AB&M Enterprises, Inc. v. State, 389 P.3d 863 (Alaska App. 2016). AB&M Enterprise, Inc. formerly owned the Rumrunners Old Towne Bar and Grill, located on 4th Ave and E Street in downtown Anchorage. An unruly patron assaulted a bouncer. The bouncer, along with his co-workers, subdued the patron, handcuffed him, and took him to the basement to await the police’s arrival. In the elevator, the bar manager told the bouncer “there are no cameras in here; he’s all yours.” The bouncer “sucker-punched” the patron, shattering his orbital socket. The patron required surgery. The bouncer, bar manager, and corporation were all charged with, and ultimately convicted of, felony assault. The corporation appealed the criminal conviction. Did the Court of Appeals uphold the corporation’s criminal conviction? Why or why not? The opinion is available via Westlaw Campus Research the online legal research service using your UA credentials. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/05%3A_Parties_to_Crime_(Accomplice_Liability)/5.02%3A_Vicarious_Liability.txt |
At common law, a defendant who helped plan the crime but was not present at the scene when the principal committed the crime was an accessory before the fact. As you now know, an accessory before the fact is an accomplice under modern criminal codes. The person who helps plan the offense is held criminally liable to the same extent as the principal.
The person who helped the principal avoid detection or escape capture after committing the offense was an accessory after the fact. The crime of accessory after the fact contained four elements: (1) commission of a completed felony – no liability attached for a failed felony; (2) knowledge – the accessory must have possessed knowledge that the principal had committed a felony; (3) affirmative act – the accessory was required to take an affirmative step to hinder the principal’s arrest; and (4) criminal intent – the accessory was required to intend to aid the principal (accidental acts were insufficient).
The law now treats the accessory after the fact as an accessory, which is a separate and distinct offense. In Alaska, the crime is called hindering prosecution. AS 11.56.770. Hindering prosecution criminalizes the act of “rendering assistance” to a person who has committed the crime. It is a dual intent crime. First, the defendant must be aware that the perpetrator has committed a crime, and second, the person must intend to hinder the apprehension, prosecution, conviction, or punishment of that person. Rendering assistance covers a large swath of conduct, including concealing a person, warning the person of impending apprehension, destroying evidence, proving aid, money, transportation, weapons, disguises, or hiding proceeds of a crime.
The difference between an accomplice and an accessory is important. An accomplice is responsible for the same offense the principal commits. An accessory, on the other hand, is guilty of a separate crime that is generally a misdemeanor or a low-level felony.
Noblit v. State, 808 P.2d 280 (Alaska App. 1991)
Alaska distinguishes between first- and second-degree hindering prosecution based on whether the principal’s crime was a felony or misdemeanor. If a person assists a perpetrator who has committed a felony, the person is guilty of first-degree hindering prosecution, a class C felony. AS 11.56.770. If the person assists a perpetrator who has committed a misdemeanor, the person is guilty of second-degree hindering prosecution, a class B misdemeanor. AS 11.56.780. But what if the person assisting a perpetrator does not know whether the perpetrator committed a felony or misdemeanor? What crime has been committed, if any? Noblit answers this question.
808 P.2d 280
Court of Appeals of Alaska.
Ken NOBLIT, Appellant,
v.
STATE of Alaska, Appellee.
March 29, 1991.
OPINION
BRYNER, Chief Judge.
Ken Noblit was convicted, after a jury trial, of hindering prosecution in the first degree. Superior Court Judge Niesje J. Steinkruger sentenced Noblit to a term of three years with one and one-half years suspended. Noblit appeals, contending that the trial court failed to instruct the jury properly on the culpable mental state for his offense. We affirm.
On August 19, 1988, Noblit’s housemate, Phillip Baird stabbed and killed a man—apparently while engaging in sadomasochistic sexual activities. The homicide occurred in the victim’s apartment and was not discovered until the following day, August 20. Noblit played no part in the killing and was not present when it happened. During the ensuing weeks, however, he engaged in a variety of acts that hindered police efforts to locate and apprehend Baird. Baird was ultimately arrested on September 15, 1988, at the trailer he shared with Noblit. He was eventually convicted of murder in the second degree.
The state charged Noblit with hindering prosecution in the first degree, in violation of AS 11.56.770(a):
(a) A person commits the crime of hindering prosecution in the first degree if the person renders assistance to a person who has committed a crime punishable as a felony with intent to
(1) hinder the apprehension, prosecution, conviction, or punishment of that person; or
(2) assist that person in profiting or benefiting from the commission of the crime.
At the conclusion of Noblit’s trial, the superior court instructed the jury, in relevant part, that the state was required to prove that Noblit “knowingly rendered assistance to a person who had committed a crime punishable as a felony,” and that, in doing so, he “intended to hinder the apprehension, prosecution, conviction, or punishment of that person.” The court rejected, however, Noblit’s request to further instruct the jury that Noblit was required to have acted knowingly or recklessly with respect to the fact that Baird’s crime was “punishable as a felony.” While specifying that the state was required to prove that Baird’s crime had in fact been a felony, the court instructed that “it is not required that the defendant knew the crime was a felony.”
On appeal, Noblit challenges the validity of the trial court’s instructions on the elements of the offense. In addressing Noblit’s argument, we begin by considering Alaska’s hindering prosecution statutes.
Under Alaska law, the distinction between hindering prosecution in the first and second degrees hinges on the seriousness of the crime committed by the person whose prosecution is hindered. Hindering prosecution in the first degree, a class C felony, occurs when a “person renders assistance to a person who has committed a crime punishable as a felony….”. Hindering prosecution in the second degree, a class B misdemeanor, occurs when a “person renders assistance to another who has committed a crime punishable by imprisonment for more than 90 days….” The first- and second-degree offenses are identical in all respects other than the seriousness of the underlying crime. For both offenses the defendant must engage in conduct that “renders assistance” to a person who has actually committed a crime. Both offenses are specific intent crimes: the state must prove, in relevant part, that the defendant acted “with intent to hinder the apprehension, prosecution, conviction, or punishment of that person; or assist that person in profiting or benefiting from the commission of the crime.” This requirement of a specific intent to hinder the prosecution of a person who has committed a crime necessarily presupposes the defendant’s knowledge that the underlying crime has been committed.
To prove its charge of hindering prosecution in the first degree in Noblit’s case, it was thus incumbent on the state to establish that Phillip Baird had committed a homicide, that his crime was punishable as a felony, and that Noblit rendered assistance to Baird after he had committed a crime. The state was further required to show that Noblit assisted Baird with knowledge of Baird’s criminal conduct and with the specific intent to hinder Baird’s prosecution.
The jury instructions in this case adequately recited these statutory elements. Noblit nevertheless insists that the instructions were flawed because they omitted a further element. According to Noblit, the trial court should have told the jury that it could not convict for hindering prosecution in the first degree unless it found that Noblit actually knew or recklessly disregarded that Baird’s illegal conduct was punishable as a felony. While Noblit concedes that this element does not appear in the statutory definition of hindering prosecution in the first degree, he contends that it should be added by judicial interpretation.
We disagree. In enacting our hindering prosecution statutes, the Alaska legislature unequivocally expressed the intent to dispense with any requirement of awareness as to the legal classification of the crime committed by the assisted person:
To commit either degree of hindering prosecution, the defendant must act with an “intent to hinder the apprehension, prosecution, conviction or punishment” of a person or to assist a person “in profiting or benefiting from the crime.” The first-degree offense, a class C felony, requires that a felon be aided. The defendant is not required to know that the crime committed by the person he aided was a felony. Strict liability is applied to this element.
Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at 86–87, 1978 Senate Journal 1399.
The commentary to Model Penal Code § 242.3 further undercuts Noblit’s culpable mental state argument. Section 242.3 is generally similar to Alaska’s hindering prosecution statutes. Like the Alaska statutes, it hinges the seriousness of a hindering prosecution charge on the seriousness of the underlying crime. The commentary to Model Penal Code § 242.3 highlights the difference between the defendant’s awareness of the conduct constituting the underlying crime and actual knowledge of the legal classification that would apply to that conduct:
Section 242.3 … limits the heavier sanction based on the seriousness of the principal offense to circumstances in which the aider is culpable with respect to that consideration. Of course, it is not necessary that the defendant know the law of the crime for which the other is sought. For this reason the grading provision for this offense requires only that the aider know that the conduct charged or liable to be charged against the other person is of the sort proscribed by one of the more serious degrees of felony.
Model Penal Code § 242.3, commentary at 239 (1980) (footnote omitted).
At least one other jurisdiction has specifically considered and rejected a culpable mental state argument similar to Noblit’s. […] In short, Noblit’s culpable mental state argument finds no support in the legislative history of Alaska’s hindering prosecution statutes, in the Model Penal Code, or in the decisions of other jurisdictions.
[…]
Under the circumstances, the following passage from the Alaska Supreme Court’s decision in Alex v. State, 484 P.2d 677, 681–82 (Alaska 1971), is particularly apt:
[A]s applied to crimes generally, what is imperative, is that an accused’s act be other than simply inadvertent or neglectful. What is essential is not an awareness that a given conduct is a “wrongdoing” in the sense that it is proscribed by law, but rather, that an awareness that one is committing the specific acts which are defined by law as a “wrongdoing.” It is, however, no defense that one was not aware that his acts were wrong in the sense that they were proscribed by law. So long as one acts intentionally, with cognizance of his behavior, he acts with the requisite awareness of wrongdoing.
[…]
The judgment is AFFIRMED.
Compounding
A related but rarely prosecuted crime is compounding. Compounding prohibits agreements to refuse to assist law enforcement. At common law, someone who committed the crime of compounding was guilty as an accessory. Under modern criminal codes, compounding is a separate and distinct offense.
To be clear, compounding and hindering are close cousins. Whereas hindering prosecution occurs if a person “renders assistance” to a perpetrator, compounding occurs if a person offers or receives a benefit to conceal an offense, withhold evidence of an offense, or refrain from assisting law enforcement. AS 11.56.790. The gravamen of compounding is the agreement to avoid law enforcement involvement. The agreement must include consideration – that is, it must include a benefit offered or accepted in exchange for withholding or concealing information about an offense. See commentary, Senate Journal Supp. No. 47, at 87 (June 12, 1978). The crime punishes both the receiver and giver of the consideration equally. Both are guilty of a class A misdemeanor. AS 11.56.790(b).
Although a person is under no obligation to assist law enforcement, and may always stand mute about their knowledge of a criminal offense, a person may not enter into an agreement to remain quiet in an effort to secure a benefit. Likewise, a person may not pervert public justice by seeking to buy or bargain their way out of criminal liability.
Not all agreements to settle a criminal case constitute compounding, however. A plea bargain – an agreement between the government and a defendant to resolve a criminal case without a trial – is not compounding. See e.g., Kansas v. Davis, 26 P.3d 681 (Kan. 2001). Also, the law specifically allows for a crime victim and a criminal defendant to civilly compromise a criminal matter in certain situations.
Civil Compromise
A defendant and a victim may agree to civilly compromise a criminal prosecution in matters where the victim would normally have a civil remedy. AS 12.45.120. This typically occurs in cases of simple (misdemeanor) assaults or vandalism (criminal mischief). In the eyes of the Legislature, such matters are appropriately resolved outside of the criminal justice system given the minor nature of the offense and the existence of a viable civil remedy. Both the crime victim and criminal defendant can adequately protect their respective interests while at the same time adjudicating the minor societal interests involved.
For example, assume Jim and Bob are neighbors and have an argument over who is responsible for damage to their mutually shared fence. In a fit of rage, Jim punches Bob in the nose. Bystanders call the police and Jim is arrested for misdemeanor assault (AS 11.41.230). Even though Jim has been charged criminally, Bob and Jim can agree to civilly resolve the case (e.g., Jim can agree to pay for the damaged fence and Bob can agree to not “press charges”). In such a case, Jim would seek dismissal of the criminal charge based on a civil compromise. AS 12.45.130. The court would review the case and individually decide whether to accept the compromise. (Note that the prosecution is not a party to the compromise.) If the Court approves the compromise, the criminal case is dismissed and further prosecution would be barred. AS 12.45.130.
Note that not all criminal cases are appropriate for a civil compromise. Felonies, thefts, domestic violence offenses, and offenses involving police and judicial officers are not subject to civil compromise. AS 12.45.120. In such cases, the societal interests involved outweigh the crime victim’s interest in resolving the criminal case civilly – the crime victim does not have the right to not “press charges.”
Exercises
Answer the following question. Check your answer using the answer key at the end of the chapter.
1. Cory watches as her sister Amanda breaks into a parking meter across the street and starts scooping change into her purse. Amanda thereafter runs into a nearby alley and hides behind a dumpster. A police officer arrives on the scene and asks Cory if she witnessed the crime. Cory responds, “No, I didn’t notice anything.” The police officer does a search, does not find Amanda, and leaves. Has Cory committed a crime? If your answer is yes, which crime has Cory committed, and does Cory have a possible defense? | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/05%3A_Parties_to_Crime_(Accomplice_Liability)/5.03%3A_Accessories_%28Hindering_Prosecution%29.txt |
Summary
Often more than one criminal defendant participates in the commission of a crime. Defendants working together with a common criminal purpose are acting with complicity and are responsible for the same crimes, to the same degree.
At early common law, there were four parties to a crime. A principal in the first degree actually committed the crime. A principal in the second degree was present at the crime scene and assisted in the crime’s commission. An accessory before the fact was not present at the crime scene but helped prepare for the crime’s commission. An accessory after the fact helped a party after he or she committed a crime by providing aid in escaping or avoiding arrest and prosecution or conviction. In modern times, there are only two parties to a crime: a principal, who is in the same category as his or her accomplices. Principals actually commit the crime, and they and their accomplices are criminally responsible for it.
The criminal act element required to be an accomplice is aiding or abetting the principal in the commission of a crime. Words are enough to constitute the accomplice’s criminal act. Mere presence at the scene, even presence at the scene combined with flight after the crime’s commission, is not enough to constitute the actus reus.
Accomplice liability in Alaska is a dual intent offense. The accomplice must intend to promote the commission of the crime and act with the underlying culpable mental state with respect to the harm caused.
The natural and probable consequences doctrine holds accomplices criminally responsible for all crimes the principal commits that are reasonably foreseeable. An accomplice can be prosecuted for a crime the principal commits even if the principal is not prosecuted or acquitted.
Vicarious liability transfers criminal responsibility from one party to another because of a special relationship. Vicarious liability is common between employers and employees and is the basis for corporate criminal liability. Under organizational liability, a corporation can be fined for the crimes of a high managerial corporate agent who commits a criminal act during the scope of their employment. The corporate agent or employee also is criminally responsible for his or her conduct. In general, the law disfavors criminal vicarious liability.
In modern times, an accessory is generally prosecuted under the offense of hindering prosecution and not as an accessory after the fact as was the case at common law. The criminal act element required for hindering prosecution is rendering assistance to a principal in escape, avoiding detection, or arrest and prosecution, or conviction for the commission of a felony or misdemeanor. The related crime of compounding criminalizes an agreement, in exchange for a benefit, not to assist law enforcement or withhold evidence.
Key Takeaways
• The four parties to crime at early common law were principals in the first degree, principals in the second degree, accessories before the fact, and accessories after the fact. These designations signified the following:
• Principals in the first degree committed the crime.
• Principals in the second degree were present at the crime scene and assisted in the crime’s commission.
• Accessories before the fact were not present at the crime scene, but assisted in preparing for the crime’s commission.
• Accessories after the fact helped a party to the crime avoid detection and escape prosecution or conviction.
• In modern times, the parties to crime are principals and their accomplices, and accessories.
• The criminal act element required for accomplice liability is aiding, abetting, or assisting in the commission of a crime. Words may be enough to constitute the accomplice criminal act element, while mere presence at the scene without a legal duty to act is not enough.
• The natural and probable consequences doctrine holds an accomplice criminally responsible if the crime the principal commits is foreseeable when the accomplice assists the principal.
• The accomplice is criminally responsible for the crimes the principal commits.
• An accomplice can be prosecuted for an offense even if the principal is not prosecuted or is tried and acquitted.
• Accomplice liability holds an accomplice accountable when he or she is complicit with the principal; vicarious liability imposes criminal responsibility on a defendant because of a special relationship with the criminal actor.
• Accomplice liability holds a complicit defendant accountable for the crime the principal commits; accessory (now called hindering prosecution) is a separate crime and is typically a misdemeanor or low-level felony. Compounding is a related, but distinct crime that punishes agreements to withhold or conceal evidence.
Answer to You be the Judge 5.1
Although harsh, if the jury finds that the co-workers acted with the appropriate culpable mental state, they are accomplices. They are guilty of manslaughter to the same extent as Jim. The rule at common law is that when a person purposely assists or encourages another person to engage in conduct that is dangerous to human life or safety, and an unintended injury or death results, it does not matter which person actually caused the injury or death by their personal conduct. As described by one legal scholar, “[t]hose present at an unlawful fist fight [who] encourage continued blows by shouts or gestures … will be guilty of manslaughter if death should ensure.” SeeRiley v. State, 60 P.3d 204, 211 (Alaska App. 2011) citing Rollin M. Perkins & Ronald N. Boyce, Criminal Law 739-40 (3rd ed. 1982).
Answer to Exercises
From “Parties to a Crime”
1. Penelope could be charged with and convicted of robbery as an accomplice. Penelope assisted Justin by telling him what time the security guard took his break. Although Penelope was not present at the scene, if the trier of fact determines that Penelope had the proper culpable mental state required for accomplice liability then Penelope can be held accountable for this crime. Note that Penelope assisted Justin with words and that words are enough to constitute the criminal act element required for accomplice liability.
From “Vicarious Liability”
1. ABC Corporation probably is not vicariously liable for criminal homicide because Brad’s reckless conduct did not occur during the scope of employment; the criminal homicide occurred as Brad was driving home. However, if Brad were required to work while driving home (by making work-related phone calls, for example), vicarious liability could be present in this instance.
2. The Court of Appeals reversed the corporation’s convictions, finding that the jury had been instructed improperly. The court outlined three theories of criminal corporate liability:
1. The bouncer was an employee of the corporation and the assault was within the scope of the bouncer’s employment and the assault was committed on behalf of the corporation;
2. The bar manager facilitated the bouncer’s assault (the manager was an accomplice) and the facilitation was within the scope of the manager’s employment and the assault was committed on behalf of the corporation; or
3. The manager solicited the bouncer to commit the assault (or subsequently ratified it) and the assault was committed on behalf of the corporation.
From “Accessory”
1. Cory has probably committed the crime of hindering prosecution in the second degree. Cory’s response to the police officer’s question was false, and it appears to be made with the intent to help Amanda escape detection. Note that Cory renders assistance using words, but words are enough to constitute the criminal act element required for accessory liability. Cory is not an accomplice to Amanda’s crime because she did not act to assist Amanda with the parking meter destruction and theft; she only acted after the crime was committed. Her failure to report the crime is probably not an “omission to act” because it is extremely unlikely that a statute exists requiring individuals to report theft committed in their presence, creating a legal duty to act. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/05%3A_Parties_to_Crime_(Accomplice_Liability)/5.04%3A_End-of-Chapter_Material.txt |
Criminal law contains three inchoate crimes – attempt, solicitation, and conspiracy. Inchoate crimes are, by definition, incomplete or anticipatory crimes. The law imposes criminal liability on individuals even though the “would-be” criminal was never successful in achieving their intent – a completed crime. All inchoate offenses are specific intent crimes – that is, all inchoate crimes require a specific intent to carry out the underlying criminal offense. Although attempt crimes never result in a finished criminal offense, both solicitation and conspiracy may give rise to separate, completed crimes.
We punish individuals who commit inchoate crimes because of the danger they pose. Even though criminal preparation may not result in a tangible, immediate harm, anticipatory criminal behavior increases the likelihood that the ultimate harm will occur. This preparation is dangerous in its own right. Society should not have to wait until harm occurs before intervening. Put another way, waiting until a crime is completed is unnecessarily harmful. Law enforcement should pro-actively investigate criminal behavior and avert injury to victims or property where possible. If a defendant could not be apprehended until a crime was accomplished, law enforcement would be forced to stand by and watch harm occur. Punishing inchoate crimes also prevents future criminal activity. If a criminal is permitted to continue to try to achieve their criminal objective, free from any criminal consequences, criminals would not be deterred. Crime should not be like riding a horse; you should not encourage a criminal to simply get back on if they fall off.
However, there is a fine line between punishing anticipatory criminal activities and punishing criminal thoughts. Remember, criminal thoughts – standing alone – are never criminal. Society does not punish the “guilty mind.” Simply dreaming about killing your boss is not unlawful. Action must occur. The difficulty is ascertaining the level of progress necessary to impute criminal responsibility. And, although the law requires a specific purpose to commit the target offense, jurisdictions have struggled on defining the difference between thoughts and action.
History of Attempt
The crime of attempt punishes the unsuccessful effort to commit the crime. But the crime of attempt is a relatively recent legal development. At early common law, an attempt was not a crime. See Wayne R. LaFave, Substantive Criminal Law §11.2(a) (3rd ed. 2018). The law required the resulting harm to occur. It was not until the late 18th century that courts began to recognize the unnecessary danger the law was encouraging. The first documented case of attempt was Rex v. Scofield, Cald. 397 (1784), in which a servant was convicted of a misdemeanor for attempting to burn down his master’s house with a lighted candle. The doctrine was crystalized in a subsequent case, Rex v. Higgins, 2 East. 5 (1801), upholding an indictment for attempted theft even though the perpetrator was unsuccessful in the intended theft. See LaFave, at §11.2(a). In modern times, nearly every jurisdiction criminalizes attempt, but as you will see, courts and legislatures continue to struggle as to what precisely constitutes an attempt.
Attempt – Voluntary Act (Actus Reus)
It is helpful to think of the actus reus of attempt on a continuum. On one hand, a person may have isolated, private criminal thoughts, which, without action, are not criminal. On the opposite side, is the completed crime. Attempt falls somewhere in between. Nearly every jurisdiction recognizes that mere preparation is insufficient to establish the actus reus of attempt. A defendant does not commit attempt by merely plotting or planning an offense. The crux of attempt is how close to completing the offense the defendant must get to fulfill the voluntary act requirement. To identify when the crime of attempt is consummated on the continuum, most jurisdictions have relied on one of four tests: (1) the dangerous proximity test, (2) the probable desistance test, (3) the res ipsa loquitur test, and (4) the substantial step test.
Dangerous Proximity Test
The dangerousproximity test measures the defendant’s progress by examining how close the defendant is to completing the offense. The distance measured is the distance between preparation for the offense and successful completion. It is the amount left to be done, not what has already been done, that is analyzed. See generally People v. Rizzo, 246 N.Y. 334 (N.Y. 1927). Generally, the defendant does not have to reach the last step before completion, although many defendants do.
Probable Desistance Test
The probable desistance test examines how far the defendant has progressed toward the commission of the crime, rather than analyzing how much the defendant has left to accomplish. Under this test, the trier of fact must determine whether the defendant’s conduct reached a point where he is unlikely to voluntarily abandon his efforts to complete the crime. Put another way, the conduct constitutes an attempt if, in the ordinary and natural course of events, without interruption from an outside event (like law enforcement), it will result in the crime being completed. See United States v. Manjujano, 499 F.2d 370, 374 (5th Cir. 1974).
Res Ipsa Loquitur Test
Res ipsa loquitur means “the thing speaks for itself.” See e.g., Black’s Law Dictionary (6th ed. 1990). Under the res ipsa loquitur test, also called the unequivocal test, an attempt is committed when the defendant’s conduct manifests a clear intent to commit the crime. The trier of fact must focus on the moment the defendant stopped progressing toward completion of the offense, and determine whether it was clear that the defendant had no other purpose than completing the specific crime. See Hamiel v. Wisconsin, 285 N.E. 2d 639, 665-66 (Wis. 1979).
The Substantial Step Test
Alaska has adopted the test developed by the Model Penal Code – the substantial step test. This test was developed in response to the large variance between jurisdictions in evaluating the conduct required for attempt. It is intended to clarify and simplify the analysis – simply put, the test asks the trier of fact to determine if the defendant took a “substantial step” towards to completion of the target offense. Take a look at Alaska Statute 11.31.100(a).
Figure 6.1 Alaska Criminal Code – Attempt
To be guilty of attempt, one must engage in conduct that demonstrates a clear, definitive intent to complete the crime. The language recognizes that mere preparation is insufficient. Minimal or preliminary steps, which may be suspicious, are insufficient. The Model Penal Code provides seven examples of actions that constitute a substantial step, as long as they are corroborative of the defendant’s intent: lying in wait; enticing the victim to go to the scene of the crime; investigating the potential scene of the crime; unlawfully entering a structure or vehicle where the crime is to be committed; possessing materials that are specially designed for unlawful use; possessing, collecting, or fabricating materials to be used in the crime’s commission; and soliciting an innocent agent to commit the crime (Model Penal Code § 5.01(2)). To be clear, neither the Model Penal Code, nor Alaska law define a “substantial step”. Instead, the law requires the defendant’s act(s) are “strongly corroborative of the [defendant’s] criminal purpose” – that is, the totality of the circumstances must convincingly demonstrate the defendant’s willingness to commit the crime. See e.g., Avila v. State, 22 P.3d 890, 893-94 (Alaska App. 2001).
The substantial step test is a close cousin to the res ipsa loquitur test. And, unlike the Dangerous Proximity or the Probable Desistence Tests, there is no requirement that the offender be in physical proximity or close to the offense to be held accountable, instead the focus is on whether the person’s intent is clear.
Example of the Substantial Step Test
Kevin wants to rob an armored car that delivers cash to the local bank. After casing the bank for two months and determining the date and time that the car makes its delivery, Kevin devises a plan that he types out on his computer. On the date of the next delivery, Kevin hides a pistol in his jacket pocket and makes his way on foot to the bank. Thereafter, he hides in an alley and waits for the truck to arrive. The truck never arrives. Unbeknownst to Kevin, the delivery was canceled the night before. In the interim, his wife discovered his plan on his computer and called the police. The police arrest Kevin after they observe him enter the alley and begin to wait. In this case, Kevin has committed the criminal act required for attempted robbery. Kevin cased the bank, planned the robbery, showed up on the appointed date and time with a concealed pistol, and hid in an alley to wait for the truck to appear. Kevin’s intent was clear.
Although Kevin is guilty of attempt under the substantial step test, he is probably not guilty under the dangerous proximity test. Given that the armored truck never arrived and would not have arrived (since the delivery was canceled), Kevin was not within proximity to a completed, successful robbery. See generally People v. Rizzo, 246 N.Y. 334 (N.Y. 1927).
Example of Mere Preparation
Remember that merely preparing to commit a criminal offense will not establish the actus reus of attempt. Read the following case, Sullivan v. State, 766 P.2d 51 (Alaska App. 1998) and ask yourself whether there was any real dispute as to what the defendant’s intent was regarding his victims? Why did the court find these actions insufficient to rise to the level of substantial steps?
766 P.2d 51
Court of Appeals of Alaska.
Rodney G. SULLIVAN, Appellant,
v.
STATE of Alaska, Appellee.
No. A–2229.
Dec. 23, 1988.
OPINION
BRYNER, Chief Judge.
Rodney G. Sullivan was convicted, after a bench trial, of attempted sexual abuse of a minor in the second degree, a class C felony. AS 11.41.436(a)(2).
Sullivan … appeals, challenging his conviction for attempted sexual abuse[.] We conclude that there was insufficient evidence to convict Sullivan of attempted sexual abuse[.]
FACTS
In September of 1984, Sullivan was staying in Ketchikan at the house of a friend, who had asked Sullivan to help keep an eye on her three children while she was on vacation for two weeks. During this period, various neighborhood children had been given permission to enter the house and to play with the family dog.
One day while several children were at the house, Sullivan approached D.T., an eight-year-old girl, and offered to “give [her] some money if [she] would be his girlfriend.” She replied, “No.” That same day, Sullivan gave D.T. and another girl, K.W., a note. According to D.T., the note read: “Will you be my girlfriend? Will you kiss me? Will you take off your clothes? Will you get another girlfriend for me?” The note also included boxes for “yes” and “no” responses. Sullivan paid D.T.’s seven-year-old brother, J.T., two dollars to deliver the note. At some point during that day, Sullivan locked J.T. into a room because, according to J.T., Sullivan “wanted to tell [D.T.] a nasty letter.” Sullivan also told J.T. that he wanted to invite D.T. “and a whole bunch of other people” to a party, and that “the only parties he had is bad parties” with girls. D.T. received at least ten or twelve other notes from Sullivan while she was at his house that day. She did not remember what the other notes said.
K.W. remembered that D.T. read her a note that Sullivan had given them. The note asked, “Do you want to be my girlfriend?” and stated, “I’ll give you a thousand dollars if you do.” K.W. also remembered that Sullivan asked the girls if they would take off their clothes in front of him.
H.T., a nine-year-old girl, was also at Sullivan’s house with D.T., K.W., and J.T. She read the note Sullivan gave to D.T. and K.W. H.T. recalled the four questions that D.T. described, although she added that there was a fifth question, which she could not recall. H.T. heard Sullivan ask K.W. and D.T. to take off their clothes “a lot of times.” She recalled that Sullivan showed the children pictures of “naked ladies” in Playboy magazine and that he gave the three girls “tests” with such questions as, “Will you go to bed with me?” and, “Will you marry me?”
On a later day, D.T. received another note from Sullivan, this time delivered to her by J.T. at home. The note said that if D.T. agreed to answer “a lot of questions, [Sullivan] would have a party.” D.T. destroyed the note.
D.T. subsequently reported the notes to her mother, who notified the Ketchikan police. During police questioning, Sullivan acknowledged the incidents and attempted to reconstruct his original note to D.T. The reconstructed note read:
I really like you a lot. I would be proud to have you as my girlfriend. So I’m going to ask you some questions. Will you go with me? Will you kiss me? Will you let me feel private parts of your body? Will you take off all of your clothes in front of me? And will you let me kiss the private parts of your body? I really hope you do some of these thing in the questions.
Sullivan was subsequently indicted on one count of attempted sexual abuse in the second degree.
[…]
SUFFICIENCY OF EVIDENCE TO SHOW ATTEMPTED SEXUAL ABUSE OF A MINOR IN THE SECOND DEGREE
Sullivan argues that there is insufficient evidence to support his conviction for attempted sexual abuse.
[…]
Alaska Statute 11.31.100(a) sets out the elements of an attempt:
[A] person is guilty of an attempt to commit a crime if, with intent to commit a crime, the person engages in conduct which constitutes a substantial step toward the commission of that crime.
In order to constitute a “substantial step,” conduct must go beyond mere preparation. Whether an act is merely preparatory or is sufficiently close to the consummation of the crime to amount to attempt, is a question of degree and depends upon the facts and circumstances of a particular case.
[…]
Sullivan claims that the state failed to produce evidence that he had taken a “substantial step” toward having sexual contact with a minor.
[…]
The state … argues that Sullivan’s acts, when viewed together, constitute a substantial step toward engaging in sexual contact with D.T. However, according to the state’s own account, Sullivan engaged in these acts in preparation for the solicitation itself. For example, at trial the state claimed that Sullivan had written his notes in test format, in order to convince the children that “what he was doing was good” so that they would want to “pass [the] test.” Likewise, the state argued at trial that Sullivan showed the children pictures of naked women “so that they would be in the mood where he could have sexual contact with them once he persuaded them to get their clothes off.” Although these acts may support an inference that Sullivan had a plan to seduce young girls, they amount to no more than preparatory conduct[.] The fact that Sullivan took steps to ensure that his solicitation would be successful does not convert the solicitation into a substantial step.
[…]
Drawing all inferences in favor of the state in the present case, the evidence presented at trial establishes only that Sullivan engaged in preparatory conduct and not that he took a substantial step toward sexual contact with D.T. We therefore reverse Sullivan’s conviction of attempted sexual abuse of a minor in the second degree.
The judgment of conviction for sexual assault in the second degree is VACATED.
Figure 6.2 Various Tests for Attempt Act
Preparatory Crimes
In addition to the criminal offense of attempt, Alaska, similar to other jurisdictions, criminalizes specific preparatory behaviors. For example, Alaska prohibits the mere possession of burglar’s tools. AS 11.46.315. Thus, a defendant could be convicted of a preparatory crime and attempt if the the defendant took a substantial step towards the completion of a burglary while in possession of burglary tools.
Example of a Preparatory Crime and Attempt
Hal manufactures a lock pick and takes it to the local coin shop, which is closed. Hal takes the lock pick out and begins to insert it into the coin shop doorknob. A security guard apprehends Hal before he is able to pick the lock. Hal could likely be convicted of possession of burglary tools and attempted burglary because he has committed the essential elements required for both offenses.
Attempt – Culpable Mental State
The culpable mental state required for attempt is having a specific intent to commit the target crime. Generally, reckless or negligent attempts do not exist. Thus, if the prosecution fails to prove beyond a reasonable doubt that the defendant acted purposefully with intent to commit the target crime, the defendant will be acquitted of the crime.
Example of a Case Lacking Attempt Intent
Eric is hiking and pauses in front of a sign that states “Only you can prevent forest fires.” Eric reads the sign, pulls out a cigarette, lights it, and throws the lit match into some dry brush near the sign. He starts hiking and when he finishes his cigarette, he tosses the lit cigarette butt into some arid grass. Neither the brush nor the grass burns. Eric probably does not have the requisite criminal intent for attempted criminally negligent burning. Attempt requires intentional conduct. Eric’s conduct is likely criminally negligent because he – as a reasonable person – would have been aware of the risk. If Eric takes the match and tries to ignite a fire, then it is likely that he has committed attempted arson in the third degree. However, in this example, Eric’s actions demonstrate careless behavior that probably is not sufficient for the crime of attempt.
Defenses to Attempt – Renunciation and Impossibility
Two primary defenses exist for attempt: voluntary renunciation and impossibility.
Voluntary Renunciation (Abandonment)
Renunciation means giving up, refusing, or abandoning one’s criminal objective. Similar to accomplice liability, a defendant who freely and voluntarily renounces their criminal intent can avoid criminal liability for attempt. AS 11.31.100(c). Renunciation is difficult to prove. First, the defendant’s abandonment must be voluntary, complete, and not influenced by an extraneous fact. The defendant must have a change of heart that is not motivated by an increased possibility of detection, or a change in circumstances that make the crime’s commission more difficult. In other words, a defendant cannot “renounce” her attempted crime as the police are arresting her, nor simply postpone the crime until a more advantageous time. The abandonment must be complete. See Alaska Criminal Pattern Jury Instructions, 11.31.100(c).
Second, the defendant must prevent the commission of the attempted crime. If the offender has put events in motion that will result in the complete crime, the defendant must successfully terminate the criminal process before the crime is completed. Although difficult to prove, voluntary renunciation gives defendants an incentive to stop progressing towards the consummation of a criminal offense and prevents the crime from occurring without the need for law enforcement intervention. Finally, renunciation is an affirmative defense. The defendant must prove it applies, not the government. Affirmative defenses will be explored shortly.
Example of Voluntary Renunciation
Matthew and Melissa decide they want to poison their neighbor’s dog because it barks loudly and constantly wakes them up every night. The two hatched a plan to rid the world of the pesky dog. Melissa purchases some rat poison at the local hardware store with the idea that Matthew will coat a raw filet mignon with the poison and throw it over the fence. The plan is the dog will eat the filet, become ill, and die. After Matthew throws the filet over the fence, Melissa changes her mind. She climbs over the fence, picks up the filet, and takes it back to her house for disposal. She also talks Matthew out of poisoning the neighbor’s dog. Melissa has likely voluntarily abandoned the crime and cannot be charged with attempted animal cruelty.
Impossibility as a Defense to Attempt
What if you attempt to commit an impossible crime? For example, what if you try to kill a non-existent person? Is such conduct criminal? It seems unfair to impose criminal liability on an action that would never have been successful and would never have caused actual harm.
Such circumstances raise the issue of impossibility. Two types of impossibility exist: legal impossibility and factual impossibility. Legal impossibility means that the defendant believes what he or she is attempting to do is illegal, when it is in fact not. Conversely, factual impossibility means that the defendant could not complete the target crime because an extraneous factor prevented the criminal act. Some jurisdictions allow legal impossibility as a defense, but none allow factual impossibility.
Alaska makes no such distinction; neither legal impossibility, nor factual impossibility, is a defense against an attempt crime. AS 11.31.100(b). The reason is simple – it is difficult to tell the difference and under both scenarios the offender has committed a voluntary act and concomitantly a criminal culpable mental state. The basic elements of a criminal offense have been met.
Example of Legal Impossibility
Matthew and Melissa are still planning to kill the neighbor’s dog. Assume that Melissa is eighteen. Melissa believes that an individual must be twenty-one to purchase rat poison because that is the law in Montana (where she lived five years ago). In actuality, Alaska allows anyone over the age of eighteen to buy rat poison. When she tries to pay for the rat poison, the store asks for identification. Melissa believes she’s committing a crime, makes an excuse, and leaves. Melissa regains her composure and goes to a second store. The second store does not ask for identification, and Melissa successfully purchases rat poison. Since Alaska does not recognize the defense of legal impossibility, Melissa’s mistaken belief that she is committed a crime transforms her legal act into an illegal one.
Example of Factual Impossibility
Now let’s change the hypothetical. Assume Matthew throws a coated filet over the fence with the intent to poison the dog. Unbeknownst to Melissa and Matthew, the dog is on an overnight camping trip with its owners. Both Melissa and Matthew are under the mistaken belief that the dog is present and will eat the filet. This mistake of fact will not excuse Melissa and Matthew’s attempted animal cruelty. Melissa and Matthew intentionally engaged in conduct that would result in the poisoning of the dog if the facts were as Melissa and Matthew believed them to be. Thus, Melissa and Matthew have likely committed attempted animal cruelty regardless of the fact that their plan could not succeed under the circumstances. Factual impossibility is not a defense under Alaska law.
Merger Doctrine
The crime of attempt merges into the completed crime. AS 11.31.140(c). Double jeopardy precludes a defendant from being punished for attempt and the completed crime. See Starkweather v. State, 244 P.3d 522, 530 (Alaska App. 2010). If a defendant is charged and convicted of both an attempt crime and the target crime, the attempt merges into the completed crime at sentencing. This rule makes sense given that every complete crime necessarily includes an attempt to commit the crime. It would be unfair to punish an offender for both a completed crime and the attempted crime.
Example of Merger
Let’s assume that Melissa and Matthew were successful. The neighbor’s dog eats the poisoned filet and dies. Melissa and Matthew may not be punished for both attempted animal cruelty and animal cruelty. Once the crime is complete, the attempt crime merges into the consummated offense, and Melissa and Matthew may only be punished for the completed animal cruelty.
Attempt Grading
Most jurisdictions, including Alaska, classify an attempt as a lower-level offense than the completed offense. Generally speaking, the crime of attempt is classified one level below the completed crime. AS 11.31.100(d). For example, killing your neighbor’s noisy dog constitutes animal cruelty, a class C felony. AS 11.61.140(a)(3). If a person attempts to commit animal cruelty, the person is guilty of a class A misdemeanor, a lower-level offense with a lower penalty provision. This lower classification frequently reduces the potential punishment.
There is one notable exception to this rule – attempted murder. Attempted murder remains an unclassified felony, just like the completed offense: first-degree murder. Both crimes provide for the same maximum punishment – 99 years imprisonment. Although both are unclassified offenses, case law requires the sentencing court to recognize that attempted murder is not as serious as a completed murder, and the ultimate sentence should reflect this difference. See e.g., Rudden v. State, 881 P.3d 328 (Alaska App. 1994). | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/06%3A_Inchoate_Offenses_(Anticipatory_Crimes)/6.01%3A_Attempt.txt |
Solicitation criminalizes the act of requesting someone to engage in illegal conduct. See Black’s Law Dictionary (6th ed. 1990). Alaska defines solicitation as acting “with the intent to cause another to engage in conduct constituting a crime, the person solicits [another] to engage in that conduct.” AS 11.31.110(a). Solicitation frequently is a precursor to conspiracy since it criminalizes the instigation of an agreement to commit a criminal offense. Solicitation is an independent crime, however, since it is possible that the conspiracy will never be formed, and the target crime may not be committed. Many of the rules that apply to attempt also apply to solicitation.
Solicitation – Voluntary Act
The actus reus of solicitation is generally words that seek to induce another to commit a crime. The term “solicits” is largely undefined, but generally includes such words like asking, inducing, or commanding. Alaska law specifically includes “commands” in the definition. AS 11.81.900(b)(61). However, the Model Penal Code does not require direct communication. It is sufficient if “conduct was designed to effect such communication.” See Model Penal Code § 5.02(2).
Solicitation – Culpable Mental State
Solicitation, like all inchoate offenses, is a specific intent crime. To be responsible, the person must intend to cause another person to engage in conduct constituting a crime. For this reason, solicitation is sometimes referred to as a “double inchoate” crime or an “attempted conspiracy.”
Example of Solicitation
Jimmy believes his friend Troy is a “fence” (i.e., a person who sells stolen property). Jimmy calls Troy and asks him to help him sell some stolen designer shoes. Jimmy is likely guilty of the crime of solicitation to commit theft. Jimmy’s act of “asking” Troy to sell stolen shoes is likely sufficient to establish the voluntary act of solicitation. Further, Jimmy’s desire for Troy to commit the crime of knowingly selling stolen property likely demonstrates Jimmy’s intentional mental state.
Revisiting Sullivan v. State
Recall in the last section you read Sullivan v. State, 766 P.2d 51 (Alaska App. 1988) where the Alaska Court of Appeals found that Sullivan’s act of sending a note to D.T., in which Sullivan asked D.T. to let him touch her “private parts” did not constitute attempted sexual abuse of a minor. Sullivan’s conduct, while repugnant, did not demonstrate a “substantial step” towards the completion of the completed step. In the eyes of the court, Sullivan’s actions were merely preparatory and suspicious; they did not demonstrate a clear, definitive intent to complete the crime.
But most would agree that Sullivan’s conduct is much too dangerous to go unpunished, which the court recognized. Although Sullivan may not have committed attempted sexual abuse of a minor, Sullivan likely committed the crime of solicitation to commit sexual abuse of a minor. As described by the court,
Although Sullivan’s conduct did not qualify as an attempt, it seems to us that his solicitation of D.T. may well have constituted a violation of [solicitation], which provides:
A person commits the crime of solicitation if, with intent to cause another to engage in conduct constituting a crime, the person solicits the other to engage in that conduct.
Alaska [law] expressly provides that, in a prosecution for solicitation, it is not a defense “that a person whom the defendant solicits could not be guilty of the crime that is the object of the solicitation.” … [S]oliciting a person to commit the offense of sexual abuse of a child in the second degree would, like attempt, be punishable as a class C felony. While it is conceivable that Sullivan could have been convicted of solicitation, the state did not charge him [with solicitation]. Solicitation [is] not a lesser-included offense of attempt.
Sullivan, 766 P.2d at 56, n.5. For a more in-depth discussion of this issue see Braun v. State, 911 P.2d 1075, 1083 (Alaska App. 1996).
Solicitation Grading
Solicitation is graded in the same manner as attempt. Solicitation to commit an offense is graded lower than the completed crime, except for solicitation to commit murder. AS 11.31.110(c). Solicitation to commit murder, like attempted murder, is an unclassified offense. AS 11.31.110(c)(1).
Defense to Solicitation – Renunciation
Solicitation contains one primary defense – renunciation. Similar to attempt, a defendant may avoid criminal liability if the defendant voluntarily and completely renounces the criminal act. Also, like attempt, renunciation requires the defendant to thwart the crime solicited. AS 11.31.110(b). Renunciation is an affirmative defense.
It is not a defense to solicitation that the person solicited could not be guilty of the target crime. AS 11.31.110(b)(1)(B). For example, it is not a defense to the crime of unlawful solicitation of a minor that the victims could not commit the target crime (e.g., sexual abuse). See Braun v. State, 911 P.2d 1075 (Alaska App. 1996).
Exercises
Answer the following questions. Check your answers using the answer key at the end of the chapter.
1. Nancy asks Jennifer to help her counterfeit twenty-dollar bills. Jennifer refuses. Has a crime been committed in this situation?
2. Several years ago, Bob was charged with first-degree murder and determined to be incompetent to stand trial due to his mental illness. At a commitment hearing, experts testified that Bob’s mental illness would last the remainder of his life and he would never be restored to competency. Last week, Bob escaped from the mental institution in which he was being treated. Today, while walking down the street, John (an “up-and-coming” criminal) approached Bob. John said to Bob, “Take this gun; walk into the bank across the street; point the gun at the teller; demand money; and return the money to me.” Bob shrugs and starts to walk across the street. As John watched Bob cross the street, John changes his mind and decides to stop the robbery. He shouts at Bob, but Bob cannot hear him because of the traffic. He tries to tackle Bob, but he falls into an open manhole. Bob successfully robs the bank and comes out with the money just as John is emerging from the manhole and the police are exiting their patrol vehicles. What crimes, if any, has John committed? Why or why not? | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/06%3A_Inchoate_Offenses_(Anticipatory_Crimes)/6.02%3A_Solicitation.txt |
The last inchoate offense to explore is conspiracy. Frequently referred to as one of the most powerful tools in the prosecutor’s arsenal, conspiracy criminalizes an agreement to commit a crime. A person is guilty of conspiracy if the person intentionally agrees to participate in a “serious felony offense” with one or more individuals. AS 11.31.120. Similar to other inchoate crimes, conspiracy does not require the target crime to be successful. The defendants may never commit the planned offense, and a co-conspirator need not personally know the other co-conspirators. AS 11.31.120(b). Conspiracy is also the only inchoate offense that does not merge with the target crime. Conspiracy is a separate criminal offense. If the defendants commit the crime that is the object of the conspiracy, they are responsible for both the conspiracy and the completed crime.
A conspiracy is complete as soon as the defendants become complicit and commit an overt act with the conspiracy intent. Conspiracy punishes defendants for planning criminal activity – including activity that would be merely preparatory under attempt or solicitation.
Take note that the law of conspiracy intentionally targets groups. This behavior is criminalized due to the dangerousness that surrounds anti-social group activity. Seee.g., Wayne R. LaFave, Substantive Criminal Law, §12 (3rd ed. 2018). When individuals collectively engage in unlawful activity, it is more likely that they will be successful. Such activity is also more difficult to stop once set in motion.
Conspiracy – Voluntary Act (Actus Reus)
Conspiracy requires the conspirators to engage in a minimum of two actions: an agreement and an overt act. First, conspirators must agree to commit the target criminal offense. The agreement need not be formal or in writing; in fact, most conspiracies involve informal agreements – that is, individuals engage in tacit, non-spoken alliances to engage in criminal activity, which may be sufficient to establish complicity. Although the agreement need not be formal, it must occur. Merely being present when an agreement is discussed, knowing about the agreement, or even hoping that the target crime will be accomplished cannot establish an agreement. See Use Note, Alaska Criminal Pattern Jury Instruction, 11.31.120(a).
Second, one of the co-conspirators must commit an overt act in furtherance of the conspiracy. The overt act operates as proof that the conspiracy is alive and functioning, as opposed to simple criminal conversations about crime. Take note that only one of the co-conspirators need to commit the overt act; the other co-conspirators need not even be aware the overt act occurred. AS 11.31.120. Make no mistake: a defendant can be held criminally liable for conspiracy if another person commits an overt act in furtherance of the conspiracy unbeknownst to the defendant.
Equally importantly is the overt act need not be criminal – planning or preparatory activity are sufficient. The overt act must be an “act of such character that it manifests a purpose on the part of the actor that the object of the conspiracy be completed.” AS 11.31.120(h)(1). Lawful activities, such as purchasing a getaway car, mailing a letter, or attending a meeting may be sufficient to establish an overt act.
One significant limitation with conspiracy is what may be conspired to – that is, what is the conspiratorial objective (i.e., the target offense). Whereas a person may attempt or solicit any crime, conspiracy is limited to a subset of the most serious felonies. A person may only conspire to commit serious felony offenses. AS 11.31.120(a). “Serious felony offense” includes:
1. Murder
2. Kidnapping
3. First-degree assault (e.g., assault with a deadly weapon)
4. First-degree robbery (e.g., armed robbery)
5. Sexual assault (e.g., rape)
6. Sexual abuse of a minor (e.g., child sexual abuse)
7. Drug-trafficking
8. First-degree criminal mischief (e.g., blowing up the pipeline)
9. First-degree terroristic threatening (e.g., biological attack/terrorism)
10. First-degree human trafficking (e.g., slavery)
11. First-degree sex trafficking; and
12. First- and second-degree arson.
Conspiracy – Culpable Mental State (mens rea)
An agreement to conspire does not happen by accident. Conspiracy is a specific intent crime, and requires a conspirator to act with an “intent to promote or facilitate” the target offense. AS 11.31.120(a). This mental state consists of two components. First, the government must prove that the conspirator intended to agree with their co-conspirator, and (2) intended to commit the target offense.
But remember, conspiracy, by definition, requires more than one active participant; one cannot conspire with oneself. That is not to say both conspirators must have an intent to achieve the conspiratorial objective – the modern trend is that a conspiracy may be formed as long as one of the parties has the requisite intent. Pursuant to this unilateral view of conspiracy, a conspiracy may exist between a defendant and a law enforcement decoy who is pretending to agree. AS 11.31.120(d). Put another way, when analyzing the culpable mental state elements of conspiracy, the focus is on the individual defendant in relation to the larger group. Defenses that may apply to one conspirator are not necessarily available to all of the conspirators.
Example of Conspiracy
Shelley and Sam meet while drinking at their local bar. Both are down on their luck and begin fantasizing about what they would do if they had money. Shelley mentions that she works at a local gas station, which tends to have several hundreds of dollars in cash at closing time. Shelley also tells Sam that the surveillance camera system is broken and her co-worker, Valerie, normally closes the gas station alone. Valerie is extremely meek and fearful and will readily hand over the cash if robbed. Sam asks Shelley if she would like to help him rob the store when Valerie is working. Shelley agrees. The two plan the robbery – Shelley agrees to borrow her roommate’s car and agrees to drive the getaway car during the robbery. Sam agrees to find a handgun to use. Sam and Shelley leave the bar with a plan to meet the following day to commit the robbery. Unbeknownst to Shelley, after the meeting, Sam met an old friend in an alley and bought a gun for the robbery. Shelley and Sam have probably committed conspiracy to commit first-degree robbery. Shelley and Sam have both demonstrated an intent to agree to work together and both have demonstrated an intent to successfully commit the robbery. Finally, Sam has committed an overt act in furtherance of the conspiracy (e.g., purchasing a gun).
Structures of Conspiracies
A conspirator need not know his co-conspirators’ identities. AS 11.31.120(b). As long the conspirator has consciously entered into the conspiracy, “the offender is guilty of conspiring with that other person or persons to commit [the target] crime whether or not the offender knows their identities.” Id. This caveat is important given the structure of many sophisticated, large-scale conspiracies. Sophisticated conspiracies may organize to intentionally defuse individual knowledge about the criminal participants and activity. For example, a criminal organization illegally distributing narcotics in the state may intentionally refuse to share participant identities within the organization. Such security protocols are designed to thwart law enforcement. Although such actions may be effective in limiting criminal investigations, they will not act as a defense to a prosecution of conspiracy.
There are two basic large-scale conspiracy organizational formats: wheel and chain conspiracies. A chain conspiracy refers to a group of people who each have a role in carrying out specific actions that lead to a successful criminal outcome. Chain conspiracies operate linearly, like links in a chain but without a central ringleader. An example of a chain conspiracy is a conspiracy to manufacture and distribute heroin, with the manufacturer linked to the transporter, who is linked to the large-quantity dealer, who thereafter sells to a smaller-quantity dealer, who sells to a customer. None of the conspirators may know the identity of the person above (or below) their contact.
A wheel conspiracy has a key person at its center (a ringleader), known as the “hub” who has contact with other members of the conspiracy, known as the “spokes.” The ringleader is interconnected to every other coconspirator. An example of a wheel conspiracy would be a mob boss linked to individual members of the mob following specific commands, all for the benefit of the larger criminal organization.
Whether the conspiracy is wheel, chain, or more informal, individual conspirators need not personally know other members of the conspiracy, and as a result, may be criminally responsible for the conspiracy and the target crimes. Similar to accomplice liability, the failure to prosecute one party to the conspiracy does not relieve a coconspirator from criminal responsibility.
Figure 6.3 Comparison of Wheel and Chain Conspiracies
Merger Doctrine
Unlike the law of attempt and solicitation, conspiracy does not merge with the substantive offense if completed. This is a significant departure from other inchoate offenses. An offender may be prosecuted, convicted, and sentenced for both conspiracy and the completed target crime. See Lythgoe v. State, 626 P.2d 1082 (Alaska 1980)
Defense to Conspiracy – Renunciation
Conspiracy has a long reach – the conspirator need not know their co-conspirators, and if successful in their criminal objective, an offender will be punished for both the conspiracy and the completed crime. But the law of conspiracy is not without its limits. As with other inchoate offenses, a defendant can avoid criminal liability if they freely and completely renounce their criminal intent. AS 11.31.120(f). Similar to other inchoate crimes, renunciation means giving up, refusing, or abandoning the criminal objective.
Renunciation is an affirmative defense to a conspiracy if the defendant manifests “a voluntary and complete renunciation of the defendant’s criminal intent” and prevents the target crime from occurring. AS 11.31.120(f). The defendant needs to take affirmative steps to prevent the target crime. The code requires the defendant to either (1) give a timely warning to law enforcement, or (2) make proper efforts “that prevented the commission of the crime.” In other words, it is not enough that the conspirator attempted to prevent the conspiracy; to relieve oneself of criminal liability, the conspirator must successfully prevent the target crime.
Also, other co-conspirators do not receive the benefit of one’s renunciation. A complete renunciation of one conspirator does not relieve other conspirators of criminal liability.
Example of Renunciation
Remember Shelley and Sam? Let’s assume that after Shelley and Sam agree to rob Valerie at the gas station, Shelley has a change of heart. Before she returns to the bar to meet Sam, she contacts law enforcement and tells them about their plan. Detectives ask Shelley to help them apprehend Sam, and she agrees. Shelley drives to the bar to pick up Sam, and then drives them both to the gas station. Unbeknownst to Sam, the detectives have replaced Valerie with an undercover officer. As soon as Sam pulls out his gun he is arrested. The robbery is unsuccessful. Shelley has likely renounced her participation in the conspiracy – she is likely not guilty of conspiracy (or the completed robbery). Sam, on the other hand, is likely guilty of both conspiracy to commit first-degree robbery and first-degree robbery. Shelley’s voluntary and complete renunciation does not relieve Sam of his criminal liability.
Grading
Similar to both attempt and solicitation, conspiracy is typically graded lower than the target offense. AS 11.31.120(i). If the target offense is classified as an unclassified offense, then conspiracy is a class A offense. If the target offense is a class A felony, then conspiracy is a class B felony offense. Class B and C felony offenses are reduced respectively. The one exception is conspiracy to commit first-degree murder. A person convicted of conspiring to commit first-degree murder remains convicted of an unclassified felony offense.
Conspiracy versus Accomplice Liability
It is important to distinguish the law of conspiracy from the law of legal accountability (accomplice liability). While there can be significant overlap, they are separate and distinct legal concepts. First, the actus reus is different. Under legal accountability, an accomplice is criminally liable to the same extent as the principal so long as the accomplice “aids, abets, or assists” the principal. AS 11.16.110. With conspiracy, the conspirators must agree to the conspiracy and one of the co-conspirators must take an overt act in furtherance of the conspiracy. (Accomplices need not agree to the conspiracy; instead, they simply must aid, abet, or assist the target crime.) Second, the resulting harm is different. Although accomplice liability is broad, the principal must be successful in the target crime. Conspiracy, on the other hand, is an inchoate offense. The object of the conspiracy need not occur. Finally, conspiracy is limited in scope. Conspiracy only applies to serious felony offenses. Accomplice liability is applicable to all criminal offenses. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/06%3A_Inchoate_Offenses_(Anticipatory_Crimes)/6.03%3A_Conspiracy.txt |
Summary
All inchoate crimes are incomplete and anticipatory. By their very definition, inchoate crimes might never be completed. The rationale for punishing a defendant for an inchoate crime is prevention and deterrence. The three inchoate crimes are attempt, solicitation, and conspiracy. All inchoate crimes are specific intent or purpose crimes – the defendant must intend to accomplish the underlying criminal objective.
Attempt punishes an unsuccessful effort to commit a crime, solicitation punishes an effort to persuade another individual to commit a crime, and conspiracy punishes an agreement to commit a crime when combined with an overt act in furtherance of the agreement.
The actus reus of attempt requires more than criminal thoughts or mere preparation. Modern US jurisdictions have adopted one of four tests: (1) the dangerous proximity test, (2) the probable desistance test, (3) the res ipsa loquitur test, or (4) the substantial step test (as developed by the Model Penal Code). Alaska has adopted the substantial step test. The substantial step test requires the defendant to engage in such conduct that demonstrates a clear and definitive intent to complete the crime. Examples of a substantial step include lying in wait, casing the potential crime scene, or gathering the instrumentalities needed for the crime.
Alaska has specifically criminalized certain preparatory behaviors, including the possession of burglar’s tools. Preparatory crimes may be combined with attempt under appropriate circumstances.
There are two types of impossibility – legal and factual. Neither is a defense to attempt in Alaska. Legal impossibility occurs if the defendant mistakenly believes that the act attempted is illegal, when in fact, it is legal. Factual impossibility occurs if the crime cannot be completed because the facts are not as the defendant believed them to be.
Solicitation is asking another person to commit a crime. The voluntary act requires the person to request through words or conduct the other person commit a crime. Solicitation is sometimes referred to as a “double inchoate” crime or “attempted conspiracy”.
Conspiracy is an agreement between two or more individuals to commit a serious felony offense. A serious felony offense is a small, limited number of serious crimes. Conspiracy requires the conspirators to agree to commit the target criminal offense and commit an overt act in furtherance of the conspiracy. Unlike attempt, the overt act in furtherance of the conspiracy may be planning or preparatory activity. The overt act must simply be enough to demonstrate that conspirator intends to complete the target crime.
Conspiracies need not be formal, sophisticated arrangements. Informal agreements may suffice. There are two types of large-scale conspiracies. Chain conspiracies are linear in progression. Wheel conspiracies consist of a ringleader in the hub and other members of the conspiracy as the spokes. A conspirator need not know the identities of their co-conspirators. Conspiracy, unlike attempt and solicitation, does not merge with the completed offense.
Voluntary renunciation is a defense to all inchoate crimes. Renunciation means giving up, refusing, or abandoning one’s criminal objective. The renunciation must be voluntary and complete. A renunciation is not voluntary and complete if it is motivated by the belief of detection or apprehension or a decision to postpone the criminal conduct until a different time.
Most inchoate crimes are graded lower than the completed crime. The exception tends to be murder – attempted murder, solicitation to commit murder, and conspiracy to commit murder are not graded lower than the completed crime. Nonetheless, most sentencing courts recognize that an incomplete murder is less serious than a completed murder.
Key Takeaways
• An inchoate crime is a crime that might not be completed.
• All inchoate crimes are specific intent crimes.
• The four tests jurisdictions use to ascertain the criminal act element required for attempt are proximity, res ipsa loquitur, probable desistance, and substantial step.
• The proximity test determines how close the defendant is to committing the crime by analyzing how much is left to accomplish after preparation for the offense.
• The res ipsa loquitur test, also called the unequivocally test, examines the defendant’s actions at a moment in time to determine whether the defendant has no other purpose than committing the crime at issue.
• The probable desistance test analyzes whether the defendant has progressed so far that it is probable he or she will not desist without interruption from law enforcement or other intervening circumstances.
• The substantial step test is the Alaska test and ascertains whether the defendant has completed sufficient steps toward the commission of the crime that are corroborative of the defendant’s criminal intent.
• Preparatory crimes criminalize preparing to commit a crime, which would be a stage that is too premature to constitute the criminal act element required for attempt.
• Impossibility is not a defense to attempt. Neither legal impossibility nor factual impossibility is a defense.
• Factual impossibility means the defendant cannot complete the crime because the facts are not as the defendant believes them to be. Legal impossibility means the defendant believes he or she is attempting to commit a crime, but the defendant’s actions are actually legal.
• Voluntary renunciation is similar to voluntary abandonment and occurs when the defendant voluntarily and completely withdraws from the commission of the offense before it is consummated.
• Attempt merges into the completed offense, which means that a defendant cannot be punished with attempt and the completed crime.
• Alaska grades attempt lower than the completed offense, with the exception of attempted murder.
• Solicitation is an inchoate crime because the crime that is solicited may not be completed.
• The voluntary act required for solicitation is words or conduct that encourages another to commit a crime.
• Voluntary renunciation is an affirmative defense to solicitation if the defendant voluntarily and completely renounces his or her criminal purpose and thwarts the commission of the solicited crime.
• Solicitation is graded lower than the completed offense with the exception of solicitation to commit murder.
• Conspiracy is an agreement to commit a serious felony offense. Conspiracy is the most serious inchoate offense.
• The voluntary act required for conspiracy is an agreement to commit the serious felony offense
• One of the conspirators must commit an overt act in furtherance of the conspiracy. The overt act can be preparatory activity
• Failure to prosecute one coconspirator does not prohibit the prosecution of other coconspirators in some jurisdictions.
• A coconspirator does not need to know every other coconspirator; as long as a coconspirator is aware that there are other members, he or she can be criminally responsible for conspiracy.
• A wheel conspiracy connects all members to one central member. A chain conspiracy interconnects the members in a linear fashion.
• Renunciation is an affirmative defense to conspiracy if the defendant voluntarily and completely renounces the conspiracy and thwarts the crime that is its object.
• Conspiracy does not merge like attempt; a defendant may be convicted of conspiracy and the crime conspired.
• Conspiracy is generally graded lower than the conspired offense. Conspiracy to commit murder is the exception.
Answers to Exercises
From Solicitation
1. Nancy has committed solicitation to commit counterfeiting, which in Alaska is a first-degree forgery. AS 14.46.500(a)(1). It is of no import that Jennifer refuses Nancy’s request because the criminal act element of solicitation is requesting another to commit a crime, not a mutual understanding or agreement (like conspiracy).
2. John has likely committed solicitation to commit robbery. John had the intent to cause another to engage in conduct constituting a crime and he solicited another person, Bob, to engage in that conduct.
John has also committed the completed crime of robbery since he was an accomplice to the crime as a result of the solicitation. Note that the crime of solicitation merges with the completed crime if successful. Thus, John will only stand convicted of the completed crime of robbery under an accomplice theory.
It is not a defense that a person whom the defendant solicits could not be guilty of the crime that is the object of the solicitation. As we will discuss in a subsequent chapter, while Bob might be charged with a crime, Bob likely remains incompetent, and thus, could not be prosecuted for the robbery. But Bob’s incompetency is not a defense against John’s criminal liability.
Finally, John cannot claim the affirmative defense of renunciation since that defense requires that the solicited crime be prevented, something that John did not do, despite his best efforts. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/06%3A_Inchoate_Offenses_(Anticipatory_Crimes)/6.04%3A_End-of-Chapter_Material.txt |
Our collective human experience recognizes that most individuals engage in criminal behavior for a reason, be it anger, survival, greed, mental illness, desire, or fear. Some reasons are acceptable, some are not. Over the next two chapters, we will explore when a reason legally excuses or legally justifies criminal behavior.
Recall that the American criminal legal system is based on the presumption of innocence. All criminal defendants are presumed innocent of the crime charged. The presumption remains unless the government can prove the defendant guilty beyond a reasonable doubt. See In re Winship, 397 U.2. 364 (1970). This burden applies to every essential element of the crime. If the government fails to establish the defendant’s guilt beyond a reasonable doubt, the trier of fact must acquit the defendant. Due process demands the government carry this burden through the entire trial; the burden of proof never shifts to the defendant.
Since a criminal defendant is never required to prove their innocence, a defendant is permitted to simply sit back and wait for the prosecution to meet its burden of proof. The government’s failure to meet its burden of proof is sometimes referred to as a failure of proof defense. The next two chapters focus on a different type of defense – those criminal defenses in which the defendant affirmatively denies the charge due to the existence of a non-constitutional, statutorydefense.[1] In fact, most criminal defenses are statutory, and because of this there is little overlap between jurisdictions. Although most states authorize similar defenses to criminal conduct, individual legislatures frequently limit or expand the availability of a particular defense depending on the desires of the electorate. The next two chapters explore criminal defenses applicable in Alaska.
Some Evidence
Although a defendant is always permitted to sit back and force the government to prove its case beyond a reasonable doubt, a defendant may only raise a defense if there is a factual basis to do so. The law requires a defendant to present “some evidence” of a defense (affirmative or otherwise) before the jury may consider it. “Some evidence” is a term of art, and typically means “there is evidence from which a reasonable juror could entertain a reasonable doubt as to the defendant’s guilt.” See Weston v. State, 682 P.2d 1119, 1121 (Alaska 1984). It is not a high burden; it is designed to ensure that the jury focuses on the relevant facts during trial, and not waste its time on interesting but largely irrelevant factual disputes.
Example of Not Establishing Some Evidence
Jim is on trial for the murder of Fred. According to the government, Jim and Fred have a long-standing hatred toward each other. On the night of the homicide, the government alleges that Jim walked up to Fred’s house, rang the doorbell, and waited for Fred to answer the door. As the door swung open, Jim shot Fred in the chest at point-blank range, killing him instantly. The government alleges that the murder was recorded on Fred’s home surveillance camera system. Jim claims he did not kill Fred and argues that the video recording of the murder is too pixelated to clearly make out who shot Fred. Jim intends to rely on the government’s inability to prove his identity beyond a reasonable doubt. Under this scenario, Jim would not be entitled to argue he shot Fred in self-defense. There is no evidence, nor is there any reasonable interpretation of the evidence, that would justify a reasonable juror to believe Jim was justified in killing Fred.
Categorization of Criminal Defenses
Not all criminal defenses operate in the same manner. Some must be disproven by the government (a defense), while others must be proven by the defendant (an affirmative defense). Some completely exonerate the defendant of criminal wrongdoing (e.g., perfect defense), while others simply reduce the severity of the offense (e.g., imperfect defense). Some defenses are questions of law (a legal defense), while others are issues of fact (a factual defense).
Defense versus Affirmative Defense
Most legislatures classify criminal defenses as either a “defense” or “affirmative defense.” The law treats defenses as the equivalent of an element of the crime, requiring the government to disprove the defense beyond a reasonable doubt. AS 11.81.900(19). An affirmative defense, on the other hand, operates independently of the government’s burden of proof. Unlike a defense, an affirmative defense must be proven by the defendant by a preponderance of the evidence. AS 11.81.900(b)(2). It is the defendant’s burden to prove an affirmative defense.
Example of an Affirmative Defense
Remember Matthew, Melissa, and the neighbor’s pesky dog from the last chapter? Melissa purchased rat poison and Matthew covered a filet mignon with it, with the intent to kill the neighbor’s pesky pet. After Matthew threw the filet over the fence, Melissa changed her mind. She climbed over the fence, picked up the filet, and took it back to her house for disposal. Melissa sought to avoid criminal liability for attempted animal cruelty using the affirmative defense of renunciation. Because renunciation is an affirmative defense, Melissa bears the burden of proving its existence – that is, Melissa must prove, by a preponderance of the evidence, that she freely and voluntarily abandoned her intent to harm the dog and that she took steps to prevent the crime. The government need not prove any of the elements of renunciation.
Justification and Excuse
Most criminal defenses are categorized as either a justification defense or an excuse defense. A defendant who relies on a justification defense is asserting that his behavior was legally justified. The underlying principle is that the harm avoided by the defendant’s conduct far outweighs the harm caused by the defendant’s conduct. Put another way, with a justification defense, society is affirmatively condoning the defendant’s conduct. A defendant who relies on an excuse defense is not claiming they were justified in their actions, but claiming that they should not be held responsible for their actions because of a circumstance that prevented them from acting lawfully. In other words, with an excuse defense, the defendant is asking the trier of fact to excuse their criminal conduct based on a unique condition that prevented them from acting lawfully. Common criminal defenses are categorized as either justification or excuse below:
Justification Defenses Excuse Defenses
Self-defense / Defense of others Insanity
Defense of property Infancy
Duress Voluntary intoxication
Necessity Heat of passion
Perfect versus Imperfect Defenses
A closely related concept is the difference between perfect and imperfect defenses. A criminal defense that completely exonerates a defendant of a crime is referred to as a perfect defense. Self-defense is a common perfect defense. A criminal defendant who successfully proves they acted in self-defense is relieved of all criminal liability surrounding the original criminal conduct. Conversely, an imperfect defense simply reduces the severity of the defendant’s criminal conduct. Heat-of-passion is an imperfect defense in Alaska. A defendant who successfully proves they killed under a heat of passion still stands convicted of homicide, albeit a lower classification, manslaughter. The difference between the two is significant – a perfect defense results in an acquittal, whereas an imperfect defense results in a conviction for a less serious offense.
Definition of Factual and Legal Defenses
A defense must be based on specific grounds. If a defense is based on an issue of fact, it is a factual defense. If a defense is based on an issue of law, it is a legal defense.
Example of Factual and Legal Defenses
Armando is charged with the burglary of Roman’s residence. Armando decides to pursue two defenses. First, Armando claims that it was 35 degrees below zero on the night of the burglary and he broke into Roman’s residence to avoid freezing to death. This is called the defense of necessity and is a factual defense; it is based on the fact that Armando faced a bona fide emergency and committed the burglary to avoid a greater harm. Second, Armando claims that the government is prohibited from prosecuting him for burglary because the statute of limitations has expired. A statute of limitations defense is a legal defense because it is based on a statute that requires the government to bring all criminal prosecutions within a specified timeframe.
1. We have previously explored various constitutional defenses to criminal law enforcement. For example, both the U.S. and Alaska constitution prohibits criminal punishment from being applied retroactively. If a law attempts to punish conduct that was not criminal at the time it was committed, the ex post facto clause would operate as a constitutional defense to any criminal charge. We will now focus on statutorily created defenses, which normally exist independent of the constitution. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/07%3A_Criminal_Defenses_(Justification)/7.01%3A_Criminal_Defenses__General_Principles.txt |
Self-defense is one of the most litigated justification defenses. Self-defense (i.e., the need to defend oneself from physical harm) is frequently misunderstood and misapplied in everyday nomenclature. To understand self-defense (formally referred to as the “use of force justification”), one must first understand the underpinnings of the defense.
Self-defense is an inherent right grounded in natural law. Everyone has a fundamental right to be free from harm or the threat of harm. It is part of our primal instinct of self-preservation – i.e., when confronted with a perceived or real threat of harm, our body naturally engages in a “fight or flight” physiological response. We seek to repel harm directed at us. This natural reaction informs the law. Recall that in District of Columbia v. Heller, 554 U.S. 570, 628 (2008), the US Supreme Court held that the Second Amendment prohibited government regulation of a handgun in the privacy of one’s own home because of our inherent right to protect ourselves. Our fundamental right to bear arms exists because of our fundamental right of self-defense. See id. Thus, while individual states have the right to expand or restrict a citizen’s right to claim self-defense for otherwise criminal behavior, an outright elimination of the right to self-defense is likely unconstitutional.
But remember that no right is absolute. Every jurisdiction has authorized the use of force under certain circumstances, but such laws vary greatly. Some states have an expansive view of self-defense while others have a narrow view. At its core, self-defense laws are a series of legislative value judgments about the need (and right) to use physical violence to prevent harm. This chapter focuses on the use of force justification as authorized under Alaska law. Alaska treats self-defense as a “defense,” meaning the government must disprove its existence beyond a reasonable doubt. The defendant need not prove he was justified in using force, but instead, the government must prove that self-defense was not applicable. Not all jurisdictions follow this model. Some states treat self-defense as an imperfect defense or an affirmative defense.
While each state is free to establish the parameters of self-defense, most self-defense statutes contain two basic principles: necessity and proportionality. These two interrelated concepts form the basis of all self-defense laws – the degree of force must be necessary to protect the person against future harm, and the degree of force must be proportional and reasonably related to the harm threatened. Alaska law largely focuses on the first element and less on the second. In Alaska, the central question in any self-defense case is: was the defendant’s use of force necessary under the circumstances? As you will see, this question is sometimes difficult to answer.
Figure 7.1 Justification: Use of Nondeadly Force Diagram.
Alaska treats self-defense as a perfect defense. If the defendant’s use of force was objectively necessary, the defendant is exonerated of any criminal wrongdoing; the defendant was legally justified in the use of force. Alaska authorizes a person to use force “when and to the extent the person reasonably believes it is necessary for self-defense against what the person reasonably believes to be the use of unlawful force by the person.” AS 11.81.330(a). As you can see, Alaska self-defense is relatively expansive, but limitations do exist.
Self-Defense is the Use of Force
Self-defense justifies the use of “force” to repel harm. Therefore, self-defense is not a defense to any crime that does not criminalize the use of force. Put another way, self-defense applies to crimes like assault, sexual assault, homicide, or robbery. It does not apply to crimes that do not involve force like drug-trafficking or DUI. That is not to say that a different justification or excuse may apply, but self-defense only applies when seeking to repel violence or the threat of violence. Further, the force being used against the defendant must be unlawful. A person may not use force to repeal lawful force. For example, a person may not claim self-defense when they are being lawfully arrested. AS 11.81.370.
Necessity – Imminency Requirement
A defendant cannot use force unless such force is necessary to prevent a future harm. The threat of harm must be imminent. AS 11.81.900(b)(27). The law does not allow retaliatory or preemptive strikes. If a person is not faced with an immediate threat of harm, a person is not justified in using self-defense. In the eyes of the law, the appropriate response is to seek lawful intervention (i.e., notify law enforcement, seek judicial intervention, and the like). The law does not permit “self-help” remedies. Similarly, the law does not allow the use of force to remedy a past or previous attack. Retaliatory attacks – attacks that are motivated by anger or malice – are not permitted.
Ha v.State, 892 P.2d 184 (Alaska App. 1995)
Ha v. State is an example of when, and to what extent, a person may use force when confronted by an attacker. As you read Ha, ask yourself if you found the defendant’s fear reasonable under the circumstances. If not, why not?
892 P.2d 184
Court of Appeals of Alaska.
Xi Van HA, Appellant,
v.
STATE of Alaska, Appellee.
March 31, 1995.
OPINION
MANNHEIMER, Judge.
Xi Van Ha appeals his conviction for second-degree murder, AS 11.41.110(a)(1). As explained in more detail below, the superior court refused to allow Ha to argue self-defense to the jury. … On appeal, Ha contends that the superior court should have instructed the jury on self-defense[.] We conclude that the superior court correctly resolved [this] issue, and thus we affirm Ha’s conviction.
Ha came to the United States from Vietnam in 1980. He lived in California for ten years and then, in 1990, he moved to Dillingham, where he worked as a fisherman, a trade he had pursued both in his native country and in Malaysia. Despite his years in the United States, Ha’s English remained rudimentary.
On June 7, 1991, Ha was employed to fish aboard the F/V (fishing vessel) Ultimate. After work on June 7th, Ha and his long-time friend Tran Gioi were socializing in the Willow Tree Bar in Dillingham. Later that evening they were joined by other Vietnamese fishermen. Among the new arrivals were Ly Van Hop and Buu Van Truong. Ha knew Buu and his family from the Vietnamese community in California, and he was also aware that Buu and Ly were roommates in Dillingham.
The men shared drinks in the Willow Tree; Ha later testified that he thought Buu was drunk by the time they left the bar. Ha, Tran, Ly, and Buu returned together to the Ultimate after Ha volunteered to reheat some leftover food. Ha later testified that his invitation to cook food was directed only to Tran and Ly. Ha did not wish to socialize with Buu because Buu was known as a violent person. According to Ha, Buu’s family in California had a reputation for violence; Ha testified that, in California, Buu and his brothers (as well as other family members) had been known to threaten and beat people who crossed them. Knowing that Buu had been drinking, Ha suspected that Buu would be even more prone to violence.
The four men reached the boat and went aboard; Ha started the generator to heat the stove. While they waited for the stove to heat up, Ha’s friend Tran lay down on a bunk, while Buu’s friend Ly went out on deck. After about fifteen minutes, Buu began to get impatient that the food was not yet heated. He began to harass Ha, swearing at Ha and making comments such as “fuck your mother”. Ha started swearing at Buu and told him to get off the boat. In response, Buu began to beat Ha. Ly ran in from the deck to assist Buu. Ly held Ha’s arms to his side while Buu continued to beat him. Buu seized Ha by the hair and struck his face and head repeatedly with his fists.
As the beating continued, Ha began shouting for help. He yelled to his friend Tran, “Gioi, come out and … fight: Buu is hitting me and killing me!” At one point, Ha yelled, “I’m dying!” When Tran heard Ha’s cries for help, he rose from his bunk and came to Ha’s aid. Tran physically separated Buu from Ha, but Buu was able to strike Ha four or five more times before he was pulled away. Ha testified that, at times during the beating, Buu hit him so hard that he fell down. Ha also testified that the attack left him with blurred vision.
Buu and Ly left the Ultimate, but they returned a few minutes later. This time, Buu was armed with a hammer. Buu came at Ha, screaming, “I’m going to kill you, and I will strike you until you die!” Buu swung the hammer at Ha’s head, but Ha jumped from the Ultimate to the F/V Misty, which was berthed alongside. When Buu followed Ha onto the Misty, Ha ran into the cabin and held the door closed. Buu stood outside the cabin and, through the glass in the door, he shouted, “Fuck your mother! I will strike you and I will kill you!”
Buu continued his tirade for four or five minutes until Ha’s friend Tran ran aboard the Misty and grabbed the hammer from Buu’s hand. Ly came aboard too and escorted Buu away. Ha remained on the Misty for several minutes before returning to the Ultimate.
That night, Ha could not sleep. He feared that Buu was bound to return and kill him as he had promised. Tran attempted to reassure Ha, but Ha remained awake after his friend fell asleep. Ha’s head was throbbing in pain. He paced throughout the boat.
As he paced, Ha remembered that there was a rifle aboard the Misty; Ha had previously used this weapon to shoot at birds while he was fishing. Ha went back to the Misty, retrieved the weapon, and loaded it.
Ha later testified that he was “very frightened”. He lay awake on his bunk throughout the night, with the rifle at his side, “the voice of Mr. Buu … resounding in [his] ears”. Tran awoke and left the boat around 7:00 or 8:00 the next morning. Ha continued to lie awake on his bunk, thinking about Buu, the rifle still underneath his blanket. Several hours later (around 8:00 in the morning), Victor Sifsof, the owner of the boat, came aboard.
Ha was still lying on his bunk when Sifsof arrived. Sifsof spoke to Ha about mending nets that day, but Ha’s head was still giving him great pain. Ha told Sifsof about the beating he had received from Buu and Ly the night before—that his head still hurt and his vision was still blurred. Sifsof saw that Ha was still very upset, even though he was acting sluggish. Ha told Sifsof that the two men who had attacked him worked on a boat owned by Billy Johnson, another local fisherman. Sifsof told Ha that he would speak to Johnson about his employees.
Around 10:00 that morning, Ha and Sifsof moved the Ultimate to a different location in preparation for the upcoming fishing opening. While the men were working, Ha left the rifle in his bunk. The Ultimate’s new location happened to be closer to Johnson’s boat, the boat on which Buu worked. Sifsof then left Ha alone on the Ultimate. The pain in Ha’s head grew worse, and Ha became more frightened, realizing that he was closer to Buu. In his head, Ha heard Buu’s voice becoming stronger and stronger, and he became more and more frightened. He lay down to try to sleep, but he found he could not. Ha tried to think of someone who could help him, but he was unable to think of anyone who could. Ha testified that Buu’s voice remained in his head; he stated, “I [did] not think that I should call the police to help me—[b]ecause [Buu’s] voice was just so ferocious and it stayed in my ears.”
Finally, Ha retrieved the rifle from his bunk, left the Ultimate, and went in search of Buu. He kept the rifle hidden underneath his jacket. Ha later testified, “[M]y head was controlling my actions, and it was commanding me to go kill [Buu].”
Shortly after noon, Ha went to where he believed Buu was working. When he discovered that Buu was not there, Ha sat down for a while to wait for him. Ha then loitered in the vicinity of Buu’s boat, where he was observed by other Vietnamese fishermen, including Buu’s friend Ly. Ly saw Ha carrying a long object concealed under his jacket. Although Ha apparently did not remember speaking to anyone at the boat, Ly testified that he approached Ha and spoke to him. After learning that Ha was searching for Buu, Ly begged Ha to go back home. Ha refused.
A little later, Ha encountered his friend Charlie Tran. Tran observed that Ha was trembling and pale. Tran asked what was wrong and Ha responded, with seeming difficulty, that Buu had assaulted him and threatened to kill him. When Tran asked Ha what he was carrying under his coat, Ha told him, “This is none of your business.” Tran urged Ha to let the incident pass, but Ha replied, “How can I let it go? Last night he beat me up and told me he was going to kill me; he already threatened to kill me. If he doesn’t kill me today, he’ll kill me tomorrow.”
At 1:30 in the afternoon, Ha spotted Buu returning from a grocery store, carrying a bag of groceries. With Buu’s voice still speaking in his head, Ha pulled out his rifle and ran towards Buu from behind. Ha repeatedly shot Buu in the back, firing the rifle thirteen times until he had emptied the weapon of ammunition. Buu was struck by seven of these rounds; he died immediately.
At trial, Ha testified that, after shooting Buu, he simply turned around and went back to the Ultimate. In contrast, another witness to the shooting testified that Ha walked up to Buu’s body, kicked dirt on it, and then, in English, swore at Buu and said to the corpse, “I told you I was going to kill you.”
Upon his return to the Ultimate, Ha changed his shirt, replaced the rifle in his bed, and hid. The police arrived and searched the boat, but they did not find Ha. Later, Ha heard Victor Sifsof’s voice. Ha emerged, holding his head, and explained to Sifsof that he might have to go to jail. Sifsof advised Ha to obtain an interpreter and go to the police, but Ha was reluctant to do this. Eventually, the police returned to the boat, found Ha, and arrested him.
Ha was indicted and tried for first-degree murder. The jury was instructed on the lesser included offenses of second-degree murder and manslaughter (under a heat of passion theory). The jury ultimately acquitted Ha of first-degree murder but found him guilty of second-degree murder.
Should the Trial Court Have Instructed the Jury on Self–Defense?
From the beginning of trial, Ha argued that he had acted in self-defense. In the defense opening statement to the jury (which was delivered immediately after the prosecutor’s opening statement), Ha’s attorney described how Buu had attacked Ha and threatened him with death; the attorney then continued:
DEFENSE ATTORNEY: [V]iolence was not uncommon for Buu. You will hear about this man and his dark, brooding, combative nature…. And I invite your close scrutiny and attention as the evidence comes in regarding [Buu’s] character, because you will come to understand and appreciate not only the dark, dangerous, deadly side of this man, but also the significance of his threats. For anyone who knew Buu did not take his threats lightly. A threat from Buu that he would kill you was as good, had as much weight, as a kiss on [the] cheek by a … Mafia godfather. That’s how deadly Buu’s threats were.
….
From knowing Buu, [Ha] knew that there was no escape. You see, Buu comes from … a family of thugs who have a reputation for violence and extortion. You will hear that…. [Ha knew that] he would have to deal with the family, or with Buu himself. Today, tomorrow, they would stalk him down.
At the close of the evidence, Ha submitted proposed instructions on self-defense, but Superior Court Judge Milton M. Souter questioned whether the evidence supported all the elements of self-defense. Specifically, Judge Souter questioned whether there was any evidence that Ha faced imminent harm when he shot Buu.
THE COURT: There’s something missing from the [proposed] self-defense instructions that I’ve already read, and that is the requirement of imminency of harm coming from the aggressor…. [AS] 11.81.330 states, [in] part (a), [that] “a person may use … force upon another when and to the extent that person reasonably believes it is necessary for self-defense against what the person reasonably believes to be the use of unlawful force by the other”…. And [if] you look to [AS] 11.81.900[ (b) ], subpart [ (23) ], … “ ‘force’ means any bodily impact, restraint, or confinement, or the threat of imminent bodily impact, restraint, or confinement”…. So it’s clear to me [that] … the definition of “force” … includes the requirement of imminency of threat of use of force as part of the definition…. It’s not included in any of these self-defense instructions that I’ve seen.
And I don’t even know if self-defense is appropriate … in this case, because I’m not aware of any evidence that shows any imminency of [harm]…. Bearing in mind that the altercation … between these two men took place a good twelve hours before the killing[,] given the fact that it’s uncontradicted that the defendant stalked this man for over an hour before he killed him [, and] [g]iven the fact [that] there’s absolutely no evidence that the victim approached the defendant in the hour or hour and a half before the shooting, there was no imminency here at all…. I don’t see it. And I’m going to want to be hearing argument on that.
Ha’s attorney responded:
DEFENSE ATTORNEY: I think “imminency” [is viewed through] the eyes of the person asserting justifiable force. Not whether … an independent person such as the judge looking at the evidence would see … imminency under the facts, but whether in [the] defendant’s mind he felt that he was in imminent danger. I think there’s been overwhelming evidence … that he was in imminent fear.
Ha’s attorney then analogized Ha’s case to cases involving the “battered woman syndrome”. The defense attorney claimed that, in cases where battered women shot their husbands while they slept, courts had ruled that the trial juries should receive instructions on self-defense. The defense attorney told Judge Souter:
DEFENSE ATTORNEY: [T]he fact that Buu was shot from behind is irrelevant, just like the fact that a husband is shot while he’s asleep. I think what the court has to [ask], and what the jury has to [ask], is, did the defendant feel that he was in imminent fear for his own safety? That’s the first prong of self-defense. And then, on the second prong, … would a reasonable person under like circumstances, another person who was in the situation of the defendant, given [the defendant’s] background, experience, and what have you—how would that person feel? … The jury may find that [Ha] was in imminent fear, but they may find that the reasonable person would not have been…. [Nonetheless], I think we meet the “some evidence” test…. [This is] an issue for the jury to decide.
Despite the defense attorney’s argument, Judge Souter ruled that he would not instruct the jury on self-defense. He found that there was not a “single shred of evidence [to indicate] any imminency of harm or threat of harm facing [the defendant] at the time that he stalked [the victim] for an hour to an hour and a half, and shot him in the back and killed him…. It’s absolutely, abundantly clear to me that an essential element of the self-defense justification [is] totally missing in this case.”
The next morning, Ha’s attorney renewed his argument for self-defense. He pointed to the evidence tending to prove that Ha had been in fear for his life and that a reasonable person in Ha’s position would also have been afraid. The defense attorney argued,
DEFENSE ATTORNEY: You’d have to [ask] how would another Vietnamese, knowing how Vietnamese behave, knowing how, when Vietnamese make a public threat, that they carry it out and that you should take those threats seriously, knowing that this person making the threat has a violent temper [and] usually carries out his [threats]. You’ve got to take all of those circumstances into consideration and then ask yourself, would another person under those circumstances act the same way?
However, Judge Souter again concluded that the evidence did not justify an instruction on self-defense.
THE COURT: The evidence in this case is absolutely devoid of any evidence that there was … any threat of imminent harm from Mr. Buu to this defendant. The evidence is absolutely clear … that this defendant, even according to his own testimony, stalked the victim, looking for him for better than an hour before he … shot him in the back, gunned him down…. The victim was unarmed. Any threat of harm … had been made twelve to thirteen hours earlier. This is the uncontradicted state of this record. To an objective third-party observer, that could not possibly amount to imminency of threat of harm…. [I]f somebody beats you up and threatens to hurt you some more, the next day you can stalk them down and kill them? That’s not the law of this state[.]
[…]
In Alaska, all use of force in self-defense is governed by AS 11.81.330(a). If the force used in self-defense rises to the level of deadly force as defined in AS 11.81.900(b)(12), then a claim of self-defense must additionally satisfy the requirements of AS 11.81.335. Section 335(a) limits deadly force to situations in which (1) the force is justified under AS 11.81.330 and (2) the actor “reasonably believes [that] the use of deadly force is necessary for self defense against death, serious physical injury”, or one of the serious felonies listed in the statute. Section 335(b) declares that, even when the use of deadly force would be justified under section 335(a), a person must still refrain from using deadly force “if the person knows that, with complete … safety …, the person can avoid the necessity of using deadly force by retreating”.
Under Alaska law, a trial judge’s obligation to instruct the jury on self-defense arises only if there is some evidence tending to prove each element of the defense. AS 11.81.900(b)(15)(A).
[…]
While the “some evidence” test may not be exacting in terms of the amount of evidence needed, the defendant’s evidence must address all the legal elements of self-defense.
[…]
In this case, Judge Souter ruled that Ha failed to meet the requirements of the general statute, AS 11.81.330, because there was no evidence that Ha faced imminent peril. On appeal, Ha claims that Judge Souter misconstrued the requirement of “imminency”.
Both at common law and under modern statutes, a person claiming self-defense as a justification for assaulting someone else has to show, not only that he or she reasonably feared harm at the hands of the other person, but also that he or she reasonably feared that the threatened harm was imminent.
Case law and legislation concerning self-defense require that the defendant reasonably believe his adversary’s violence to be almost immediately forthcoming. Most of the modern codes require that the defendant reasonably perceive an “imminent” use of force, although other language making the same point is sometimes found.
Wayne R. LaFave and Austin W. Scott, Substantive Criminal Law (1986), § 5.7(d), “Imminence of Attack”, Vol. 1, pp. 655–56. See also Rollin M. Perkins and Ronald N. Boyce, Criminal Law (3rd ed. 1982), Ch. 10, Sec. 4, “Self–Defense”, p. 1114. (“The danger must be, or appear to be, pressing and urgent. A fear of danger at some future time is not sufficient.”)
[…]
Ha argues that the imminency of a defendant’s peril must be judged from the standpoint of the defendant. Ha contends that a reasonable person in Ha’s position—a person who had heard Buu threaten his life and who knew the vicious propensities of Buu and his criminal family—would reasonably fear that Buu or one of his relatives would inevitably come some day to carry out Buu’s threat to kill Ha.
Viewing the evidence in the light most favorable to Ha, we agree that there was sufficient evidence that a reasonable person in Ha’s position would have feared death or serious physical injury from Buu. Buu had threatened Ha with death. Buu was a violent man who nursed grudges and who was likely to carry out his threat someday. Moreover, the evidence suggested that Buu came from a violent, criminal clan, and that Buu’s relatives might very well help Buu carry out the threat—or might carry it out themselves if Buu was unable.
[…]
However, “inevitable” harm is not the same as “imminent” harm. Even though Ha may have reasonably feared that Buu (or one of Buu’s relatives) would someday kill him, a reasonable fear of future harm does not authorize a person to hunt down and kill an enemy.
[…]
Consistent with [court opinions from other states] and in accord with the wording of AS 11.81.330 and AS 11.81.900(b)(23), we hold that a defendant claiming self-defense as justification for the use of force must prove that he or she acted to avoid what he or she reasonably perceived to be a threat of imminent harm. A defendant’s reasonable belief that harm will come at some future time is not sufficient to support a claim of self-defense or defense of others.
Ha’s evidence supported the conclusion that he reasonably believed that Buu would someday harm him. But the requirement of imminency limits the scope of authorized self-defense. A defendant may actually and reasonably believe that, sooner or later, his enemy will choose an opportune moment to attack and kill him. Nevertheless, as Judge Souter noted, the law does not allow a defendant to seek out and kill his enemy so that he no longer has to live in fear. The defendant’s use of force against his enemy is authorized only when the defendant actually and reasonably believes that the enemy’s threatened attack is imminent.
Ha argues that, when determining whether a defendant reasonably believed that harm was imminent, the trial judge and the jury must consider the circumstances as they appeared to the defendant. Ha contends that, in his case, these circumstances include “[Ha’s] past experiences, his knowledge of [Buu], as well as [Ha’s] physical and mental condition”. We agree with Ha up to a point.
A defendant’s knowledge of the deceased’s violent nature must be considered when judging the reasonableness of the defendant’s actions and perceptions. And we agree with Ha that the reasonableness of his perception of imminent harm must be evaluated, not just based on Buu’s words and actions on the specific occasion when Ha killed him, but also based on Ha’s knowledge of Buu’s propensities and past conduct.
[T]he determination of reasonableness must be based on the “circumstances” facing a defendant or his “situation”[.] Such terms encompass more than the physical movements of the potential assailant…. [T]hese terms include any relevant knowledge the defendant had about the person. They also necessarily bring in the physical attributes of all persons involved, including the defendant. Furthermore, the defendant’s circumstances encompass any prior experiences he had which could provide a reasonable basis for a belief that another person’s intentions were to injure [or commit a crime upon] him or that the use of deadly force was necessary under the circumstances.
People v. Goetz, 68 N.Y.2d 96, 506 N.Y.S.2d 18, 29, 497 N.E.2d 41, 52 (1986) (citations omitted).
Thus, Ha is correct when he asserts that the reasonableness of his belief that he faced imminent harm must be analyzed in light of the severe beating that Ha had sustained at Buu’s hands twelve hours before, in light of Buu’s earlier repeated threats to kill Ha, and in light of Ha’s knowledge of Buu and his family, whose criminal history indicated that Buu’s threats should be taken seriously. And, to the extent that an understanding of Vietnamese culture was relevant to evaluating Buu’s motivation or readiness to kill Ha, this too was a proper matter to be considered.
However, Ha argues that, because of his cultural background and his poor command of English, he felt that it would be useless to go to the police for help and that he had “no viable alternatives” to killing Buu. The evidence at Ha’s trial shows that Ha had ample opportunity to inform others of his conflict with Buu and to seek their assistance. During the twelve or thirteen hours between the fight on board the Ultimate and the shooting, Buu left Ha completely alone. During this period, Ha had conversations with the skipper of his fishing boat and with various acquaintances in the Vietnamese community. Moreover, even assuming that Ha believed it would be pointless to speak with any of these people about Buu’s threats, this does nothing to establish that Buu posed an imminent danger to Ha or that Ha could have reasonably believed that Buu posed such a danger. Ha’s argument is simply another way of saying that Ha believed Buu would inevitably kill him if Ha did not act first. As we have said, a reasonable fear of future harm does not justify killing one’s enemy.
Ha also appears to argue that Vietnamese culture teaches that all police are corrupt, that one can expect no help from the authorities, and that people must take the law into their own hands to resolve personal disputes. Assuming for purposes of argument that Ha’s characterization of Vietnamese culture is accurate, and further assuming that Ha believed all these things, this still does not establish that Ha reasonably believed that Buu posed an imminent danger to him. To the extent that Ha might be arguing that the law of self-defense should make exceptions for people whose culture encourages vendettas, killings to assuage personal honor, or preemptive killings to forestall future harm, we reject Ha’s argument.
Ha next contends that Judge Souter (and ultimately the jury) should have evaluated the imminency of harm from the point of view of someone who was not thinking clearly. Ha argues that, because of his extreme fear and because he had possibly sustained brain injury during Buu’s earlier attack, he was subjectively convinced that Buu was about to kill him at any moment. Assuming this is true, this would not establish the reasonableness of Ha’s subjective perception. (In fact, if Ha is arguing that he would not have perceived an imminent danger were it not for his mental abnormality, his argument establishes that he was acting unreasonably.)
When the law says that the reasonableness of self-defense must be evaluated from the point of view of the defendant, this does not mean from the point of view of a mentally ill defendant. The reasonableness of a defendant’s perceptions and actions must be evaluated from the point of view of a reasonable person in the defendant’s situation, not a person suffering mental dysfunction.
[…]
Thus, the reasonableness of Ha’s belief in the imminence of danger must be evaluated from the point of view of a reasonable person in his situation—someone with Ha’s pertinent knowledge of and experience with Buu, but someone whose perceptions were clear and rational. If the rule were otherwise, judges and juries would be obliged to acquit defendants who killed under a psychotic delusion that they were about to suffer serious harm.
In this case, despite the evidence suggesting that Ha had good reason to fear future harm from Buu, there was no evidence that Ha was in imminent danger, or could have reasonably believed himself to be in imminent danger, when he hunted Buu through the streets of Dillingham and then shot him from behind while Buu was carrying groceries. Judge Souter therefore correctly declined to instruct the jury on self-defense.
[…]
Conclusion
For the reasons explained above, we uphold Judge Souter’s refusal to instruct the jury on self-defense[.]
North Carolina v. Norman, 378 S.E.2d 8 (N.C. 1998) (Battered Spouse Defense)
Throughout the years, there have been several cases addressing domestic violence situations where an intimate partner is physically or sexually abused for years until the abused partner kills or seriously injurers the abusive partner. These cases may involve a battered wife who kills her husband in his sleep. The following case, North Carolinav. Norman, 378 S.E.2d 8 (N.C. 1998), is demonstrative of the issue. As you read Norman, compare how the majority opinion articulates the imminency requirement different than the dissenting opinion. Also, ask yourself if Norman is consistent with, or inconsistent with, Ha v. State?
324 N.C. 253
Supreme Court of North Carolina.
STATE of North Carolina
v.
Judy Ann Laws NORMAN.
April 5, 1989.
Opinion
MITCHELL, Justice.
The defendant was [charged] with the first degree murder of her husband. The jury found the defendant guilty of voluntary manslaughter. The defendant appealed[.] [The North Carolina Court of Appeals found that the trial court erred in declining to instruct on self-defense and granted the defendant a new trial. This appeal followed.]
[…]
At trial, the State presented the testimony of Deputy Sheriff R.H. Epley of the Rutherford County Sheriff’s Department, who was called to the Norman residence on the night of 12 June 1985. Inside the home, Epley found the defendant’s husband, John Thomas Norman, lying on a bed in a rear bedroom with his face toward the wall and his back toward the middle of the room. He was dead, but blood was still coming from wounds to the back of his head. A later autopsy revealed three gunshot wounds to the head, two of which caused fatal brain injury. The autopsy also revealed a .12 percent blood alcohol level in the victim’s body.
Later that night, the defendant related an account of the events leading to the killing, after Epley had advised her of her constitutional rights and she had waived her right to remain silent. The defendant told Epley that her husband had been beating her all day and had made her lie down on the floor while he slept on the bed. After her husband fell asleep, the defendant carried her grandchild to the defendant’s mother’s house. The defendant took a pistol from her mother’s purse and walked the short distance back to her home. She pointed the pistol at the back of her sleeping husband’s head, but it jammed the first time she tried to shoot him. She fixed the gun and then shot her husband in the back of the head as he lay sleeping. After one shot, she felt her husband’s chest and determined that he was still breathing and making sounds. She then shot him twice more in the back of the head. The defendant told Epley that she killed her husband because “she took all she was going to take from him so she shot him.”
The defendant presented evidence tending to show a long history of physical and mental abuse by her husband due to his alcoholism. At the time of the killing, the thirty-nine-year-old defendant and her husband had been married almost twenty-five years and had several children. The defendant testified that her husband had started drinking and abusing her about five years after they were married. His physical abuse of her consisted of frequent assaults that included slapping, punching and kicking her, striking her with various objects, and throwing glasses, beer bottles and other objects at her. The defendant described other specific incidents of abuse, such as her husband putting her cigarettes out on her, throwing hot coffee on her, breaking glass against her face and crushing food on her face. Although the defendant did not present evidence of ever having received medical treatment for any physical injuries inflicted by her husband, she displayed several scars about her face which she attributed to her husband’s assaults.
The defendant’s evidence also tended to show other indignities inflicted upon her by her husband. Her evidence tended to show that her husband did not work and forced her to make money by prostitution, and that he made humor of that fact to family and friends. He would beat her if she resisted going out to prostitute herself or if he was unsatisfied with the amounts of money she made. He routinely called the defendant “dog,” “bitch” and “whore,” and on a few occasions made her eat pet food out of the pets’ bowls and bark like a dog. He often made her sleep on the floor. At times, he deprived her of food and refused to let her get food for the family. During those years of abuse, the defendant’s husband threatened numerous times to kill her and to maim her in various ways.
The defendant said her husband’s abuse occurred only when he was intoxicated, but that he would not give up drinking. She said she and her husband “got along very well when he was sober,” and that he was “a good guy” when he was not drunk. She had accompanied her husband to the local mental health center for sporadic counseling sessions for his problem, but he continued to drink.
In the early morning hours on the day before his death, the defendant’s husband, who was intoxicated, went to a rest area off I-85 near Kings Mountain where the defendant was engaging in prostitution and assaulted her. While driving home, he was stopped by a patrolman and jailed on a charge of driving while impaired. After the defendant’s mother got him out of jail at the defendant’s request later that morning, he resumed his drinking and abuse of the defendant.
The defendant’s evidence also tended to show that her husband seemed angrier than ever after he was released from jail and that his abuse of the defendant was more frequent. That evening, sheriff’s deputies were called to the Norman residence, and the defendant complained that her husband had been beating her all day and she could not take it anymore. The defendant was advised to file a complaint, but she said she was afraid her husband would kill her if she had him arrested. The deputies told her they needed a warrant before they could arrest her husband, and they left the scene.
The deputies were called back less than an hour later after the defendant had taken a bottle of pills. The defendant’s husband cursed her and called her names as she was attended by paramedics, and he told them to let her die. A sheriff’s deputy finally chased him back into his house as the defendant was put into an ambulance. The defendant’s stomach was pumped at the local hospital, and she was sent home with her mother.
While in the hospital, the defendant was visited by a therapist with whom she discussed filing charges against her husband and having him committed for treatment. Before the therapist left, the defendant agreed to go to the mental health center the next day to discuss those possibilities. The therapist testified at trial that the defendant seemed depressed in the hospital, and that she expressed considerable anger toward her husband. He testified that the defendant threatened a number of times that night to kill her husband and that she said she should kill him “because of the things he had done to her.”
The next day, the day she shot her husband, the defendant went to the mental health center to talk about charges and possible commitment, and she confronted her husband with that possibility. She testified that she told her husband later that day: “J.T., straighten up. Quit drinking. I’m going to have you committed to help you.” She said her husband then told her he would “see them coming” and would cut her throat before they got to him.
The defendant also went to the social services office that day to seek welfare benefits, but her husband followed her there, interrupted her interview and made her go home with him. He continued his abuse of her, threatening to kill and to maim her, slapping her, kicking her, and throwing objects at her. At one point, he took her cigarette and put it out on her, causing a small burn on her upper torso. He would not let her eat or bring food into the house for their children.
That evening, the defendant and her husband went into their bedroom to lie down, and he called her a “dog” and made her lie on the floor when he lay down on the bed. Their daughter brought in her baby to leave with the defendant, and the defendant’s husband agreed to let her baby-sit. After the defendant’s husband fell asleep, the baby started crying and the defendant took it to her mother’s house so it would not wake up her husband. She returned shortly with the pistol and killed her husband.
The defendant testified at trial that she was too afraid of her husband to press charges against him or to leave him. She said that she had temporarily left their home on several previous occasions, but he had always found her, brought her home and beaten her. Asked why she killed her husband, the defendant replied: “Because I was scared of him and I knowed when he woke up, it was going to be the same thing, and I was scared when he took me to the truck stop that night it was going to be worse than he had ever been. I just couldn’t take it no more. There ain’t no way, even if it means going to prison. It’s better than living in that. That’s worse hell than anything.”
The defendant and other witnesses testified that for years her husband had frequently threatened to kill her and to maim her. When asked if she believed those threats, the defendant replied: “Yes. I believed him; he would, he would kill me if he got a chance. If he thought he wouldn’t a had to went to jail, he would a done it.”
Two expert witnesses in forensic psychology and psychiatry who examined the defendant after the shooting, Dr. William Tyson and Dr. Robert Rollins, testified that the defendant fit the profile of battered wife syndrome. This condition, they testified, is characterized by such abuse and degradation that the battered wife comes to believe she is unable to help herself and cannot expect help from anyone else. She believes that she cannot escape the complete control of her husband and that he is invulnerable to law enforcement and other sources of help.
Dr. Tyson, a psychologist, was asked his opinion as to whether, on 12 June 1985, “it appeared reasonably necessary for Judy Norman to shoot J.T. Norman?” He replied: “I believe that … Mrs. Norman believed herself to be doomed … to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable….” Dr. Tyson later added: “I think Judy Norman felt that she had no choice, both in the protection of herself and her family, but to engage, exhibit deadly force against Mr. Norman, and that in so doing, she was sacrificing herself, both for herself and for her family.”
Dr. Rollins, who was the defendant’s attending physician at Dorothea Dix Hospital when she was sent there for evaluation, testified that in his opinion the defendant was a typical abused spouse and that “[s]he saw herself as powerless to deal with the situation, that there was no alternative, no way she could escape it.” Dr. Rollins was asked his opinion as to whether “on June 12th, 1985, it appeared reasonably necessary that Judy Norman would take the life of J.T. Norman?” Dr. Rollins replied that in his opinion, “that course of action did appear necessary to Mrs. Norman.”
Based on the evidence that the defendant exhibited battered wife syndrome, that she believed she could not escape her husband nor expect help from others, that her husband had threatened her, and that her husband’s abuse of her had worsened in the two days preceding his death, the Court of Appeals concluded that a jury reasonably could have found that her killing of her husband was justified as an act of perfect self-defense. The Court of Appeals reasoned that the nature of battered wife syndrome is such that a jury could not be precluded from finding the defendant killed her husband lawfully in perfect self-defense, even though he was asleep when she killed him. We disagree.
The right to kill in self-defense is based on the necessity, real or reasonably apparent, of killing an unlawful aggressor to save oneself from imminent death or great bodily harm at his hands. Our law has recognized that self-preservation under such circumstances springs from a primal impulse and is an inherent right of natural law.
In North Carolina, a defendant is entitled to have the jury consider acquittal by reason of perfect self-defense when the evidence, viewed in the light most favorable to the defendant, tends to show that at the time of the killing it appeared to the defendant and she believed it to be necessary to kill the decedent to save herself from imminent death or great bodily harm. That belief must be reasonable, however, in that the circumstances as they appeared to the defendant would create such a belief in the mind of a person of ordinary firmness. Further, the defendant must not have been the initial aggressor provoking the fatal confrontation. A killing in the proper exercise of the right of perfect self-defense is always completely justified in law and constitutes no legal wrong.
Our law also recognizes an imperfect right of self-defense in certain circumstances, including, for example, when the defendant is the initial aggressor, but without intent to kill or to seriously injure the decedent, and the decedent escalates the confrontation to a point where it reasonably appears to the defendant to be necessary to kill the decedent to save herself from imminent death or great bodily harm. Although the culpability of a defendant who kills in the exercise of imperfect self-defense is reduced, such a defendant is not justified in the killing so as to be entitled to acquittal, but is guilty at least of voluntary manslaughter
The defendant in the present case was not entitled to a jury instruction on either perfect or imperfect self-defense. The trial court was not required to instruct on either form of self-defense unless evidence was introduced tending to show that at the time of the killing the defendant reasonably believed herself to be confronted by circumstances which necessitated her killing her husband to save herself from imminent death or great bodily harm. No such evidence was introduced in this case, and it would have been error for the trial court to instruct the jury on either perfect or imperfect self-defense.
[…]
The killing of another human being is the most extreme recourse to our inherent right of self-preservation and can be justified in law only by the utmost real or apparent necessity brought about by the decedent. For that reason, our law of self-defense has required that a defendant claiming that a homicide was justified and, as a result, inherently lawful by reason of perfect self-defense must establish that she reasonably believed at the time of the killing she otherwise would have immediately suffered death or great bodily harm. Only if defendants are required to show that they killed due to a reasonable belief that death or great bodily harm was imminent can the justification for homicide remain clearly and firmly rooted in necessity. The imminence requirement ensures that deadly force will be used only where it is necessary as a last resort in the exercise of the inherent right of self-preservation. It also ensures that before a homicide is justified and, as a result, not a legal wrong, it will be reliably determined that the defendant reasonably believed that absent the use of deadly force, not only would an unlawful attack have occurred, but also that the attack would have caused death or great bodily harm. The law does not sanction the use of deadly force to repel simple assaults.
The term “imminent,” as used to describe such perceived threats of death or great bodily harm as will justify a homicide by reason of perfect self-defense, has been defined as “immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law.” Black’s Law Dictionary 676 (5th ed. 1979). Our cases have sometimes used the phrase “about to suffer” interchangeably with “imminent” to describe the immediacy of threat that is required to justify killing in self-defense.
The evidence in this case did not tend to show that the defendant reasonably believed that she was confronted by a threat of imminent death or great bodily harm. The evidence tended to show that no harm was “imminent” or about to happen to the defendant when she shot her husband. The uncontroverted evidence was that her husband had been asleep for some time when she walked to her mother’s house, returned with the pistol, fixed the pistol after it jammed and then shot her husband three times in the back of the head. The defendant was not faced with an instantaneous choice between killing her husband or being killed or seriously injured. Instead, all of the evidence tended to show that the defendant had ample time and opportunity to resort to other means of preventing further abuse by her husband. There was no action underway by the decedent from which the jury could have found that the defendant had reasonable grounds to believe either that a felonious assault was imminent or that it might result in her death or great bodily injury. Additionally, no such action by the decedent had been underway immediately prior to his falling asleep.
[…]
Additionally, the lack of any belief by the defendant-reasonable or otherwise-that she faced a threat of imminent death or great bodily harm from the drunk and sleeping victim in the present case was illustrated by the defendant and her own expert witnesses when testifying about her subjective assessment of her situation at the time of the killing. The psychologist and psychiatrist replied affirmatively when asked their opinions of whether killing her husband “appeared reasonably necessary” to the defendant at the time of the homicide. That testimony spoke of no imminent threat nor of any fear by the defendant of death or great bodily harm, imminent or otherwise. Testimony in the form of a conclusion that a killing “appeared reasonably necessary” to a defendant does not tend to show all that must be shown to establish self-defense. More specifically, for a killing to be in self-defense, the perceived necessity must arise from a reasonable fear of imminent death or great bodily harm.
Dr. Tyson additionally testified that the defendant “believed herself to be doomed … to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable.” Such evidence of the defendant’s speculative beliefs concerning her remote and indefinite future, while indicating she had felt generally threatened, did not tend to show that she killed in the belief-reasonable or otherwise-that her husband presented a threat of imminent death or great bodily harm. Under our law of self-defense, a defendant’s subjective belief of what might be “inevitable” at some indefinite point in the future does not equate to what she believes to be “imminent.” Dr. Tyson’s opinion that the defendant believed it was necessary to kill her husband for “the protection of herself and her family” was similarly indefinite and devoid of time frame and did not tend to show a threat or fear of imminent harm.
The defendant testified that, “I knowed when he woke up, it was going to be the same thing, and I was scared when he took me to the truck stop that night it was going to be worse than he had ever been.” She also testified, when asked if she believed her husband’s threats: “Yes…. [H]e would kill me if he got a chance. If he thought he wouldn’t a had to went to jail, he would a done it.” Testimony about such indefinite fears concerning what her sleeping husband might do at some time in the future did not tend to establish a fear-reasonable or otherwise-of imminent death or great bodily harm at the time of the killing.
[…]
As we have stated, stretching the law of self-defense to fit the facts of this case would require changing the “imminent death or great bodily harm” requirement to something substantially more indefinite than previously required and would weaken our assurances that justification for the taking of human life remains firmly rooted in real or apparent necessity. That result in principle could not be limited to a few cases decided on evidence as poignant as this. The relaxed requirements for perfect self-defense proposed … would tend to categorically legalize the opportune killing of abusive husbands by their wives solely on the basis of the wives’ testimony concerning their subjective speculation as to the probability of future felonious assaults by their husbands. Homicidal self-help would then become a lawful solution, and perhaps the easiest and most effective solution, to this problem. It has even been suggested that the relaxed requirements of self-defense found in what is often called the “battered woman’s defense” could be extended in principle to any type of case in which a defendant testified that he or she subjectively believed that killing was necessary and proportionate to any perceived threat.
In conclusion, we decline to expand our law of self-defense beyond the limits of immediacy and necessity which have heretofore provided an appropriately narrow but firm basis upon which homicide may be justified and, thus, lawful by reason of perfect self-defense or upon which a defendant’s culpability may be reduced by reason of imperfect self-defense. As we have shown, the evidence in this case did not entitle the defendant to jury instructions on either perfect or imperfect self-defense.
For the foregoing reasons, we conclude that the defendant’s conviction for voluntary manslaughter and the trial court’s judgment sentencing her to a six-year term of imprisonment were without error.
[The North Carolina Court of Appeals is REVERSED and the trial court’s judgment is affirmed].
MARTIN, Justice, dissenting.
At the outset it is to be noted that the peril of fabricated evidence is not unique to the trials of battered wives who kill. The possibility of invented evidence arises in all cases in which a party is seeking the benefit of self-defense. Moreover, in this case there were a number of witnesses other than defendant who testified as to the actual presence of circumstances supporting a claim of self-defense. This record contains no reasonable basis to attack the credibility of evidence for the defendant.
Likewise, the difficulty of rebutting defendant’s evidence because the only other witness to many of the events is deceased is not unique to this type of case. This situation is also commonplace in cases in which self-defense is raised, although, again, in the case sub judice there was more than one surviving witness to such events. In considering the argument that the state is faced with a difficult burden in attempting to rebut evidence of which defendant is the only surviving witness, one must not overlook the law: the burden is always on the state to prove that the killing was intentional beyond a reasonable doubt. “Defendant may always rest ultimately on the weakness of the state’s case and the state’s failure to carry its burden of proof.”
At the heart of the majority’s reasoning is its unsubstantiated concern that to find that the evidence presented by defendant would support an instruction on self-defense would “expand our law of self-defense beyond the limits of immediacy and necessity.” Defendant does not seek to expand or relax the requirements of self-defense and thereby “legalize the opportune killing of allegedly abusive husbands by their wives,” as the majority overstates. Rather, defendant contends that the evidence as gauged by the existing laws of self-defense is sufficient to require the submission of a self-defense instruction to the jury. The proper issue for this Court is to determine whether the evidence, viewed in the light most favorable to the defendant, was sufficient to require the trial court to instruct on the law of self-defense. I conclude that it was.
In every jury trial, it is the duty of the court to charge the jury on all substantial features of the case arising on the evidence, whether or not such instructions have been requested. All defenses presented by the defendant’s evidence are substantial features of the case, even if that evidence contains discrepancies or is contradicted by evidence from the state. This rule reflects the principle in our jurisprudence that it is the jury, not the judge, that weighs the evidence.
[…]
Evidence presented by defendant described a twenty-year history of beatings and other dehumanizing and degrading treatment by her husband. In his expert testimony a clinical psychologist concluded that defendant fit “and exceed[ed]” the profile of an abused or battered spouse, analogizing this treatment to the dehumanization process suffered by prisoners of war under the Nazis during the Second World War and the brainwashing techniques of the Korean War. The psychologist described the defendant as a woman incarcerated by abuse, by fear, and by her conviction that her husband was invincible and inescapable:
Mrs. Norman didn’t leave because she believed, fully believed that escape was totally impossible. There was no place to go. He, she had left before; he had come and gotten her. She had gone to the Department of Social Services. He had come and gotten her. The law, she believed the law could not protect her; no one could protect her, and I must admit, looking over the records, that there was nothing done that would contradict that belief. She fully believed that he was invulnerable to the law and to all social agencies that were available; that nobody could withstand his power. As a result, there was no such thing as escape.
When asked if he had an opinion whether it appeared reasonably necessary for Judy Norman to shoot her husband, this witness responded:
Yes…. I believe that in examining the facts of this case and examining the psychological data, that Mrs. Norman believed herself to be doomed … to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable; death of herself, which was not such, I don’t think was such an issue for her, as she had attempted to commit suicide, and in her continuing conviction of J.T. Norman’s power over her, and even failed at that form of escape. I believe she also came to the point of beginning to fear for family members and her children, that were she to commit suicide that the abuse and the treatment that was heaped on her would be transferred onto them.
This testimony describes defendant’s perception of circumstances in which she was held hostage to her husband’s abuse for two decades and which ultimately compelled her to kill him. This testimony alone is evidence amply indicating the first two elements required for entitlement to an instruction on self-defense.
In addition to the testimony of the clinical psychologist, defendant presented the testimony of witnesses who had actually seen defendant’s husband abuse her. These witnesses described circumstances that caused not only defendant to believe escape was impossible, but that also convinced them of its impossibility. Defendant’s isolation and helplessness were evident in testimony that her family was intimidated by her husband into acquiescing in his torture of her. Witnesses also described defendant’s experience with social service agencies and the law, which had contributed to her sense of futility and abandonment through the inefficacy of their protection and the strength of her husband’s wrath when they failed. Where torture appears interminable and escape impossible, the belief that only the death of the oppressor can provide relief is reasonable in the mind of a person of ordinary firmness, let alone in the mind of the defendant, who, like a prisoner of war of some years, has been deprived of her humanity and is held hostage by fear.
In [a prior decision], this Court noted that if the defendant was in “no imminent danger” at the time of the killing, then his belief that it was necessary to kill the man who had pursued him eight hours before was unreasonable. The second element of self-defense was therefore not satisfied. In the context of the doctrine of self-defense, the definition of “imminent” must be informed by the defendant’s perceptions. It is not bounded merely by measurable time, but by all of the facts and circumstances. Its meaning depends upon the assessment of the facts by one of “ordinary firmness” with regard to whether the defendant’s perception of impending death or injury was so pressing as to render reasonable her belief that it was necessary to kill.
Evidence presented in the case revealed no letup of tension or fear, no moment in which the defendant felt released from impending serious harm, even while the decedent slept. This, in fact, is a state of mind common to the battered spouse[.] Psychologists have observed and commentators have described a “constant state of fear” brought on by the cyclical nature of battering as well as the battered spouse’s perception that her abuser is both “omnipotent and unstoppable.” Constant fear means a perpetual anticipation of the next blow, a perpetual expectation that the next blow will kill. “[T]he battered wife is constantly in a heightened state of terror because she is certain that one day her husband will kill her during the course of a beating…. Thus from the perspective of the battered wife, the danger is constantly ‘immediate.’ ” [citations omitted] For the battered wife, if there is no escape, if there is no window of relief or momentary sense of safety, then the next attack, which could be the fatal one, is imminent. In the context of the doctrine of self-defense, “imminent” is a term the meaning of which must be grasped from the defendant’s point of view. Properly stated, the second prong of the question is not whether the threat was in fact imminent, but whether defendant’s belief in the impending nature of the threat, given the circumstances as she saw them, was reasonable in the mind of a person of ordinary firmness.
Defendant’s intense fear, based on her belief that her husband intended not only to maim or deface her, as he had in the past, but to kill her, was evident in the testimony of witnesses who recounted events of the last three days of the decedent’s life. This testimony could have led a juror to conclude that defendant reasonably perceived a threat to her life as “imminent,” even while her husband slept. Over these three days, her husband’s anger was exhibited in an unprecedented crescendo of violence. The evidence showed defendant’s fear and sense of hopelessness similarly intensifying, leading to an unsuccessful attempt to escape through suicide and culminating in her belief that escape would be possible only through her husband’s death.
Defendant testified that on 10 June, two days before her husband’s death, he had again forced her to go to a rest-stop near Kings Mountain to make money by prostitution. Her daughter Phyllis and Phyllis’s boyfriend Mark Navarra accompanied her on this occasion because, defendant said, whenever her husband took her there, he would beat her. Phyllis corroborated this account. She testified that her father had arrived some time later and had begun beating her mother, asking how much money she had. Defendant said they all then drove off. Shortly afterwards an officer arrested defendant’s husband for driving under the influence. He spent the night in jail and was released the next morning on bond paid by defendant’s mother.
Defendant testified that her husband was argumentative and abusive all through the next day, 11 June. Mark Navarra testified that at one point defendant’s husband threw a sandwich that defendant had made for him on the floor. She made another; he threw it on the floor, as well, then insisted she prepare one without touching it. Defendant’s husband had then taken the third sandwich, which defendant had wrapped in paper towels, and smeared it on her face. Both Navarra and Phyllis testified that they had later watched defendant’s husband seize defendant’s cigarette and put it out on her neck, the scars from which defendant displayed to the jury.
A police officer testified that he arrived at defendant’s home at 8:00 that evening in response to a call reporting a domestic quarrel. Defendant, whose face was bruised, was crying, and she told the officer that her husband had beaten her all day long and that she could not take it any longer. The officer told her that he could do nothing for her unless she took out a warrant on her husband. She responded that if she did, her husband would kill her. The officer left but was soon radioed to return because defendant had taken an overdose of pills. The officer testified that defendant’s husband was interfering with ambulance attendants, saying “Let the bitch die.” When he refused to respond to the officer’s warning that if he continued to hinder the attendants, he would be arrested, the officer was compelled to chase him into the house.
Defendant’s mother testified that her son-in-law had reacted to the discovery that her daughter had taken the pills with cursing and obscenities and threats such as, “Now, you’re going to pay for taking those pills,” and “I’ll kill you, your mother and your grandmother.” His rage was such that defendant’s mother feared he might kill the whole family, and knowing defendant’s sister had a gun in her purse, she took the gun and placed it in her own.
Defendant was taken to the hospital, treated, and released at 2:30 a.m. She spent the remainder of the night at her grandmother’s house. Defendant testified that the next day, 12 June, she felt dazed all day long. She went in the morning to the county mental health center for guidance on domestic abuse. When she returned home, she tried to talk to her husband, telling him to “straighten up. Quit drinking…. I’m going to have you committed to help you.” Her husband responded, “If you do, I’ll see them coming and before they get here, I’ll cut your throat.”
Later, her husband made her drive him and his friend to Spartanburg to pick up the friend’s paycheck. On the way, the friend testified, defendant’s husband “started slapping on her” when she was following a truck too closely, and he periodically poured his beer into a glass, then reached over and poured it on defendant’s head. At one point defendant’s husband lay down on the front seat with his head on the arm rest, “like he was going to go to sleep,” and kicked defendant, who was still driving, in the side of the head.
Mark Navarra testified that in the year and a half he had lived with the Normans, he had never seen defendant’s husband madder than he was on 12 June, opining that it was the DUI arrest two days before that had ignited J.T.’s fury. Phyllis testified that her father had beaten her mother “all day long.” She testified that this was the third day defendant’s husband had forbidden her to eat any food. Phyllis said defendant’s family tried to get her to eat, but defendant, fearing a beating, would not. Although Phyllis’s grandmother had sent over a bag of groceries that day, defendant’s husband had made defendant put them back in the bag and would not let anyone eat them.
Early in the evening of 12 June, defendant’s husband told defendant, “Let’s go to bed.” Phyllis testified that although there were two beds in the room, her father had forbidden defendant from sleeping on either. Instead, he had made her lie down on the concrete floor between the two beds, saying, “Dogs don’t lay in the bed. They lay in the floor.” Shortly afterward, defendant testified, Phyllis came in and asked her father if defendant could take care of her baby while she went to the store. He assented and eventually went to sleep. Defendant was still on the floor, the baby on the small bed. The baby started to cry and defendant “snuck up and took him out there to [her] mother’s [house].” She asked her mother to watch the baby, then asked if her mother had anything for headache, as her head was “busting.” Her mother responded that she had some pain pills in her purse. Defendant went in to get the pills, “and the gun was in there, and I don’t know, I just seen the gun, and I took it out, and I went back there and shot him.”
From this evidence of the exacerbated nature of the last three days of twenty years of provocation, a juror could conclude that defendant believed that her husband’s threats to her life were viable, that serious bodily harm was imminent, and that it was necessary to kill her husband to escape that harm. And from this evidence a juror could find defendant’s belief in the necessity to kill her husband not merely reasonable but compelling.
[…]
Deadly Force – Excessive Force
A person may only use force “when and to the extent” necessary to repeal the threatened harm. Thus, the law does not allow a person to use deadly force when non-deadly force would be sufficient. Non-deadly force is a force that is unlikely to cause death or serious physical injury. AS 11.81.900(b)(39). Deadly force is the opposite – a force that is likely to cause death or serious physical injury. AS 11.81.900(b)(16). Examples of deadly force may include the use of a knife, gun, vehicle, or even bare hands depending on how they were used.
Thus, if a person is faced with a punch, it is unlikely that they would be able to defend themselves with a knife. In other words, a person may not use excessive force. A person may only use deadly force if it is necessary to prevent death, serious physical injury, kidnapping, sexual assault, or robbery. AS 11.81.335(a).
Figure 7.2 AS 11.81.335. Justification: Use of deadly Force Diagram.
The force used must be objectively reasonable under the circumstances. The defendant must “reasonably believe” that the force is necessary to repeal the threatened harm. When the threat ends, the use of force must end. Unnecessary force – that is, excessive force – is never permitted.
But similarly, if the defendant is entitled to use deadly force under the circumstances, the law does not require the defendant to use “minimal deadly force” before using “all-out deadly force.” There is no such thing as “almost deadly force”. Force, in the context of self-defense, is binary: it is either deadly or non-deadly. For example, a defendant who is facing a deadly attacker is not required to shoot their assailant in the leg before shooting the assailant in the chest. If the defendant is entitled to use deadly force, they are entitled to use sufficient deadly force to stop the threat: no more, no less.
Finally, even though we frequently discuss self-defense in hindsight, the jury must evaluate the defendant’s use of force based on the circumstances as they were known to the defendant at the time force was used. Thus, the jury is required to view the events leading up to the force through the eyes of the defendant and ask themselves whether such action was reasonable. They are not permitted to retroactively (that is, in hindsight) assess the reasonableness of the defendant’s decision.
Jones-Nelson v. State, ___ P.3d ___ (Alaska 2022)
In the following case, the court is faced with the question of objective reasonableness, “excessive” deadly force, and how these terms are defined for the trier of fact.
___ P.3d ___
Supreme Court of Alaska.
Marquinn JONES-NELSON, Appellant,
v.
STATE of Alaska, Appellee.
June 24, 2022
OPINION
Carney, Justice.
INTRODUCTION
A defendant convicted of first-degree murder appealed his conviction to the court of appeals, arguing that the trial court erroneously instructed the jury on the law of self-defense. The court of appeals agreed the instruction was erroneous but concluded that the error was harmless and affirmed the defendant’s conviction.
The defendant petitioned us, asking that we reverse the court of appeals’ decision and his conviction because the erroneous instruction relieved the State of its burden to disprove self-defense beyond a reasonable doubt. We agree. We therefore reverse the decisions of the superior court and court of appeals and vacate the defendant’s conviction because the challenged instruction is legally incorrect and impermissibly lightens the prosecution’s burden to disprove self-defense.
FACTS AND PROCEEDINGS
1. Facts[1]
[On the evening of March 23, 2011, Jones-Nelson and two of his friends attended a party at an Anchorage apartment. Jordan and some of his friends attended the same party.
At some point, Jordan confronted Jones-Nelson in a bedroom, accusing him of spreading the rumor that Jordan was a police snitch. During this confrontation, Jordan came within three feet of Jones-Nelson, and he was acting aggressively. However, Jordan ultimately left the room and returned to sit with his friends in the kitchen.
One of Jordan’s friends who lived in the apartment, Nikita Sanders, could see that Jordan was angry. She asked him if he was “good,” and Jordan replied that he was. But Jordan then asked another friend, Parrish Harris, whether he should “drop” Jones-Nelson. Sanders heard this comment, and she told Jordan, “Not in my apartment.”
(Because Jones-Nelson was still in the bedroom, he did not hear Jordan’s comment.)
A little later, Jones-Nelson called Harris into the bedroom and told him to fetch Jordan. Harris did so; moments later, Jordan came into the bedroom.
According to the testimony later given by Jones-Nelson and two of his friends (Dorian Topps and Dionte Wren), Jordan approached Jones-Nelson in an aggressive manner. He came within a foot and a half of Jones-Nelson, stood over him, and asked, “What’s up?” (Jordan, who was about 6 foot 3 inches tall and weighed 170 pounds, was significantly bigger than Jones-Nelson, who was 5 foot 7 inches tall and weighed about 135 pounds.)
According to the defense witnesses, Jordan looked like he was going to hit Jones-Nelson. In addition, Topps (one of Jones-Nelson’s friends) testified that he saw Jordan reaching for a handgun in his waistband as he approached Jones-Nelson. However, Wren (Jones-Nelson’s other friend) testified that he did not see Jordan with a firearm, nor did he see Jordan actually try to hit Jones-Nelson.
Regardless of this discrepancy in the testimony, it is undisputed that Jones-Nelson pulled out a handgun and started shooting at Jordan. Jones-Nelson fired two shots in quick succession, at which point Jordan turned and ran toward the kitchen. As Jordan ran away, Jones-Nelson fired four more shots. Jordan died as a result of his wounds.
Following the shooting, Jones-Nelson fled the apartment, accompanied by Wren and Topps. Jones-Nelson’s girlfriend was waiting outside in a car, and the four drove away from the apartment. When Jones-Nelson’s girlfriend asked him what happened, Jones-Nelson replied that he had just “smoked” Jordan. Jones-Nelson later disposed of the handgun by tossing it over a bridge.
The next day, Jones-Nelson contacted a person to obtain a fake birth certificate and other false documents so that he could leave Alaska under a false identity. The person that Jones-Nelson contacted was secretly a federal informant, and she alerted the authorities to Jones-Nelson’s plan. The police arrested Jones-Nelson when he went to retrieve the false documents. When Jones-Nelson was interviewed following his arrest, he denied being at the scene of the shooting.
At trial, there was no dispute that Jones-Nelson shot and killed Jordan. The only question was whether this shooting was justified by self-defense.
[…]
Both Jones-Nelson and his friend Topps testified that Jordan approached Jones-Nelson in an aggressive manner, and that Jordan reached into his waistband for a gun. (As we noted earlier, Jones-Nelson’s other friend, Wren, testified that he did not see Jordan reach for a gun.) Jones-Nelson testified that when he saw Jordan reaching for a gun, he was afraid that he would be pistol-whipped or shot, so he grabbed a revolver from the window ledge and started shooting at Jordan. Jones-Nelson conceded that, after the first few shots, Jordan dropped his gun and ran, but Jones-Nelson testified that he kept firing because he was afraid that Jordan’s friends might have guns and might come to Jordan’s aid.
The prosecutor argued that neither Jones-Nelson nor his friend Topps were credible witnesses, and that their testimony about Jordan reaching for a gun was false. The prosecutor asserted that Jones-Nelson never subjectively believed that he needed to use deadly force to repel an imminent attack.]
1. Trial
Jones-Nelson gave notice before trial that he would claim self-defense. At the end of the four-week-long trial, the trial court gave the jury three instructions on the law of self-defense. The first two, numbered 30 and 31, were pattern instructions that described the use of nondeadly force and deadly force in self-defense. These instructions correctly stated the relevant law. The deadly force instruction explained that if a person is justified in using nondeadly force in self-defense, the person can also use deadly force “when the person reasonably believes the use of deadly force is necessary for self-defense.”
At the prosecution’s request and over Jones-Nelson’s objection, the court also gave the following instruction, drafted by the prosecutor:
A basic tenet of the doctrine of self-defense is that [the] use of deadly force is unreasonable … if non-deadly force is obviously sufficient to avert the threatened harm. Even in circumstances when a person is permitted to use deadly force in self-defense[,] that person may still not be authorized to employ all-out deadly force because such extreme force is not necessary to avert the danger.
[…]
The jury rejected Jones-Nelson’s self-defense claim and convicted him of first-degree murder. [On appeal to the Alaska Court of Appeals, Jones-Nelson argued that the self-defense instruction was legal error. The Court of Appeals agreed that the jury instruction was legally unnecessary, but found the legal error harmless.]
DISCUSSION
Jones-Nelson argues that the court of appeals was wrong to conclude that the incorrect jury instruction was harmless. And he argues that the instruction reduced the State’s duty to disprove self-defense beyond a reasonable doubt. The State argues that the jury instruction correctly stated the law and that any imperfections in the jury instruction did not affect the verdict. We agree with Jones-Nelson that the instruction erroneously described the law of self-defense, the error was constitutional in nature, and the error was not harmless beyond a reasonable doubt.
[…]
The Instruction Incorrectly Directed The Jury To Retroactively Assess The Reasonableness Of Jones-Nelson’s Use Of Force.
Jones-Nelson argues that the instruction improperly directed the jury to retroactively assess his use of force. Alaska has codified the common law of self-defense. The use of nondeadly force is governed by AS 11.81.330. When a defendant uses deadly force as defined in AS 11.81.900(b)(16), the defendant must show that the additional requirements of AS 11.81.335 are satisfied. A person is entitled to use deadly force in self-defense if nondeadly force is justified under AS 11.81.330 and the person “reasonably believes the use of deadly force is necessary for self-defense against … death[,] … serious physical injury,” or one of the crimes listed in the statute.
Whether such force is necessary must be evaluated based on the circumstances as they appeared to the defendant at the time the force was used. We have recognized that “[d]etached reflection cannot be demanded in the presence of an uplifted knife.” For that reason, “[e]ven if the defendant’s fear turns out to have been mistaken, [self-defense] still may be established if the defendant proves that, under the circumstances, he or she reasonably feared imminent deadly attack at the hand of the victim.”
[…]
In this case, the first two self-defense instructions were pattern instructions presenting the jury with the definitions of nondeadly and then deadly force. The pattern instructions closely tracked the statutory language. The third instruction, number 34, was drafted by the prosecutor.
[…]
The court of appeals concluded that the error in Instruction 34 was that “the wording … failed to unambiguously recite the concept of ‘reasonableness’ that is central to the law of self-defense.” The court observed that the question before the jury “is not whether a defendant’s use of force, and the level of force used, was necessary in hindsight (or, using the language of the challenged instruction, whether some lesser amount of force can now be seen to be ‘obviously sufficient to avert the threatened harm’).” We agree. Because the instruction implied that reasonableness could be assessed in hindsight, the instruction was in error.
The Instruction Erroneously Distinguished Between Deadly And “All-Out Deadly” Force.
Jones-Nelson also argues that the instruction improperly distinguished between deadly force and “all-out deadly force” or “extreme force.” The second sentence of the instruction directed that “[e]ven in circumstances when a person is permitted to use deadly force in self-defense[,] that person may still not be authorized to employ all-out deadly force because such extreme force is not necessary to avert the danger.” The instruction is derived from language in State v. Walker, 887 P.2d 971, 978 (Alaska App. 1994). Jones-Nelson contends that [the] language was taken out of context and was “quite specific to the facts of that case.” The court of appeals rejected this argument, noting that the “instruction correctly captured the concept that the defendant’s use of force must be proportionate to the perceived danger.”
Alaska law permits the use of deadly force “when and to the extent the person reasonably believes the use of deadly force is necessary.” The State argues that this “when and to the extent” language requires courts to distinguish not only between deadly and nondeadly force, but also between different degrees of deadly force. In addition to Walker, the State bases its argument on the common law principle of proportionality. We have not previously addressed whether the “when and to the extent” language in AS 11.81.335(a) requires a defendant authorized to use deadly force to distinguish between different degrees of deadly force. We hold that it does not.
Alaska’s law of self-defense is contained in a pair of interlocking statutes. The first, AS 11.81.330, sets out the general principles authorizing the use of nondeadly force: “A person is justified in using nondeadly force upon another when and to the extent the person reasonably believes it is necessary for self-defense against what the person reasonably believes to be the use of unlawful force by the other person,” unless a specified exception applies. Alaska Statute 11.81.335(a) provides for the use of deadly force in self-defense: “[A] person who is justified in using nondeadly force in self-defense under AS 11.81.330 may use deadly force in self-defense … when and to the extent the person reasonably believes the use of deadly force is necessary for self-defense against (1) death; [or] (2) serious physical injury ….” Both statutes require that the person using force in self-defense reasonably believe that the force is necessary and that the person reasonably believe that the other person is using unlawful force. The plain language of both statutes makes clear that if either of these beliefs is unreasonable at the time the person uses force in self-defense, then the use of force in self-defense is not permitted. Nothing in the plain language of AS 11.85.335(a) even implies an additional reasonable belief about the level of deadly force necessary to defend against death or serious physical injury.
Although the dissent asserts that our decision removes a “proportionality” requirement in Alaska’s law of self-defense which implies levels of deadly force, its discussion actually supports the premise that the use of any force in self-defense is justified only when necessary.[2] […] Jones-Nelson’s case also raises the question of the necessity of firing shots at Jordan after he fled the room, but that issue has nothing to do with the degree of force Jones-Nelson used.
[…]
There is little support for the State’s argument that common law principles of proportionality require a distinction between different degrees of deadly force. In Rowe v. United States, 164 U.S. 546, 558 (1896), the United States Supreme Court held that a defendant wielding deadly force in self-defense had no duty to “so carefully aim[ ] his pistol as to paralyze the arm of his assailant, without more seriously wounding him.” Many courts have applied general principles of proportionality to self-defense without distinguishing between subcategories of deadly force.
We have adopted the United States Supreme Court’s view that “[d]etached reflection cannot be demanded in the presence of an uplifted knife.” We agree with the [United States Supreme] Court’s observation that a person justified in using deadly force need not “consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him.” Legislative history and the common law do not support the State’s argument that AS 11.81.335(a) distinguishes between regular and “all-out” deadly force. The State concedes that a defendant “faced with a knife-wielding assailant” need not “analyze each [defensive] option and decide which would best do the defensive job while minimizing the harm to one’s assailant, at risk of getting stabbed … while pondering the options.” But distinguishing between ordinary deadly force and “all-out deadly force” would require defendants to do just that.
[…]
Alaska law recognizes only two categories of force: nondeadly and deadly. It is a binary choice: either the force used is deadly or it is not. The [challenged instruction, number 34,] implies that there is an additional distinction — that there can be more or less deadly versions of deadly force. This is legal error.
[…]
CONCLUSION
We REVERSE the court of appeals’ decision that the erroneous jury instruction was harmless error. Accordingly, we VACATE the conviction and REMAND the case to the superior court for further proceedings consistent with this opinion.
[1] Facts taken from the court of appeals’ decision, Jones-Nelson v. State, 446 P.3d 797, 798-801 (Alaska App. 2019).
[2] The Court included the following footnote to help explain “necessary” in AS 11.81.335(a): “Our interpretation of the “to the extent necessary” language is temporal — deadly force is not justified after its use for self-defense has ended. The dissent, in contrast, interprets it to mean that only a proportionally necessary amount of deadly force can be justified, using the example of a police officer continuing a choke-hold after subduing a subject. But neither interpretation would allow an officer to continue using deadly force against a subdued subject.
As you can see, the concept of proportionality is largely subsumed into necessity. What may be necessary under the circumstance may also be proportional. The inverse is also true. In the eyes of the Alaska Supreme Court, the proportionality distinction is limited to the type of force used – deadly or non-deadly; if the type of force used is necessary, it is also likely proportional. Although the law may discuss the two concepts separately, it may be easier to consider them as a collective whole.
Unreasonable Fear of Injury or Death
As Jones-Nelson teaches us, a defendant cannot claim self-defense unless a reasonable person in the defendant’s situation would believe that deadly force was necessary to avoid death or serious harm. In some jurisdictions, however, like North Carolina, if the defendant honestly but unreasonably believes deadly force is necessary under the circumstances, a claim of imperfect self-defense may reduce the severity of the offense. The defendant is still guilty of a crime, albeit a less serious crime, like manslaughter. Alaska has no such exception, and has expressly abolished imperfect self-defense. See Howell v. State, 917 P.2d 1202, 1211 n.7 (Alaska App. 1996). Instead, if the defendant honestly, but unreasonably, believes self-defense was necessary, the defendant may seek the application of a statutory mitigator that may lessen the punishment imposed. AS 12.55.155(d)(4).
Duty to Retreat – Withdrawal
Is self-defense, especially the use of deadly force, truly necessary if the defendant can avoid the confrontation entirely by running away? This question surrounds the doctrine of duty to retreat. Some jurisdictions require the defendant to retreat and avoid the confrontation if possible before using deadly force. Alaska has largely rejected this doctrine. Under Alaska’s “stand your ground” law, a person has no duty to retreat before using deadly force if the person is legally present when deadly force is used. Put another way, Alaska’s duty to retreat only applies to trespassers. A person trespassing must retreat prior to using deadly force. AS 11.81.335(b). Others need not retreat.
Self-Defense – Exclusions
Because self-defense is a creature of statute, legislators frequently limit the circumstances in which it is available. Alaska is no different. The Alaska Legislature has carved out several exclusions in which a person may not claim self-defense as a matter of law. For example, a person may not claim self-defense if the use of force was part of mutual combat, if the defendant initiated or provoked an attack, or if the defendant is engaging in inherently dangerous criminal conduct. AS 11.81.330(a)(1)-(4).
In essence, these statutory exclusions are based on a legislative decision that individuals who voluntarily engage in certain activities lose the right to claim self-defense. The legislative exclusions are built upon the assumption that individuals can avoid the need to use self-defense by avoiding such dangerous activities. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/07%3A_Criminal_Defenses_(Justification)/7.02%3A_Self-Defense.txt |
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7.04: Necessity and Duress
Is Cannibalism a Crime?
In 1884, the English yacht, the “Mignonette” sank during a powerful storm in the South Atlantic, some 1600 miles from shore. Three men and a teenage boy, Richard Parker, made it to a lifeboat where they became adrift on the open ocean. The lifeboat had no freshwater or food. The survivors subsisted on a small turtle for twelve days. For the next eight days, they had no food. They captured rainwater, but very sporadically.
On the eighteenth day the men discussed sacrificing someone to save the rest. One of the men dissented; Richard was not consulted. On the twentieth day, still without food or water, the men killed Richard. By the time of his death, Richard was helpless and extremely weakened. Although the men told him was going to be killed, he never consented to his death. The men fed upon the boy’s flesh for four days. On the fourth day, a passing vessel rescued them.
Once back on the mainland, the Crown charged the survivors with murder. The trial received national attention with the survivors being called “heroes” for surviving such an ordeal. In an effort to prosecute the case, the Crown dismissed the charges against the least-culpable survivor. The evidence at trial demonstrated that had the men not killed and eaten the boy they all would have died of famine. Likewise, the evidence demonstrated that Richard, given his weakened state, would have likely died before rescue. Richard was moments from death when he was killed. The men contended that they acted out of pure necessity – but for eating the boy (who was going to die anyway) they all would have died.
Assume you are a juror in this case. Would you vote to convict the survivors of murder? Alternatively, were the men legally justified in their act of murder? Put another way, is killing a dying boy to save your own life a valid justification? Why or why not? Check your answer at the end of the chapter.
Want to learn more about the Mignonette and its tragic end? Joseph Simeone’s essay entitled, “Survivors” of the Eternal Sea: A Short True Story, 45 St. Louis U. L.J. 1123 (2001) is an excellent and riveting description of the events of the survivors and what happened. Simeone’s essay is available through the Consortium Library at the University of Alaska Anchorage using your student credentials.
Occasionally, the law protects a would-be defendant from criminal responsibility because the defendant had no reasonable choice but to commit the crime. The defenses of necessity and duress recognize that occasionally a greater good is achieved by violating the law. Both involve an element of compulsion. The defendant committed the criminal act due to a real or perceived need or threat.
Necessity
The defense of necessity sanctions the violation of criminal law if necessary to prevent a significant harm. All jurisdictions authorize a necessity defense (sometimes referred to as a “choice of evils” defense) under some circumstances – roughly one-half of states allow necessity by statute, while one-half rely on the common law defense of necessity.
Alaska has codified its common law. “The law of necessity is one of public policy: the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.” See Nelson v. State, 597 P.2d 977, 979 (Alaska 1979). Necessity is an affirmative defense, which requires the defendant to prove the existence of the defense by a preponderance of the evidence. AS 11.81.320. Necessity is a perfect justification and results in an acquittal.
To assert the defense of necessity, the defense must establish three elements. First, the criminal act committed must have been done to prevent a significant evil. Second, the defendant must not have an adequate alternative. Finally, the defense must cause less harm than the harm avoided – in other words, the harm caused must not have been disproportionate to the harm avoided. Necessity is only permitted in an actual emergency, not a perceived emergency.
Scharen v. State, 249 P.3d 331 (Alaska App. 2011)
In the next case, Scharen v. State, pay close attention to how the court explains what constitutes a real, bona fide, emergency to justify the necessity defense. Emergencies of one’s own making rarely qualify.
249 P.3d 331
Court of Appeals of Alaska.
David J. SCHAREN, Appellant,
v.
STATE of Alaska, Appellee.
No. A–10550.
March 18, 2011.
OPINION
MANNHEIMER, Judge.
David J. Scharen appeals his conviction for driving under the influence. Scharen argues that the trial judge committed error by refusing to instruct the jury on the defense of “necessity”. For the reasons explained in this opinion, we conclude that the trial evidence fails to support a defense of necessity. In particular, the evidence, even when construed in the light most favorable to Scharen, fails to support the conclusion that Scharen had no reasonable alternative but to take control of a motor vehicle while intoxicated. We therefore affirm Scharen’s conviction.
Underlying facts
In January 2009, Scharen and his wife attended a Juneau Ski Club fund-raising event that was held at a downtown bar, the Viking Lounge. (Scharen’s wife’s employer was a member of the ski club, and she was one of the people working at this fund-raiser.)
The Scharens arrived around 6:00 p.m., and over the course of the next hour, Scharen drank alcoholic beverages. Around 7:00 or 7:30, Scharen began to fall asleep, so his wife told him to go outside and wait for her in their minivan until the fund-raiser was over. Scharen’s wife gave him the keys so he could get into the vehicle.
Scharen left the Viking Lounge and walked to the minivan. When he arrived at the vehicle, he got into the driver’s seat, inserted the keys into the ignition, and started the engine (so that the vehicle would be warm; the outside temperature was 18 degrees). Scharen then deliberately went to sleep.
Around 9:00 p.m., a passerby saw Scharen sitting or lying unconscious in the driver’s seat, inside the running vehicle. When the passerby was unable to rouse Scharen, he summoned the police. A police officer arrived and woke Scharen up by knocking on the window and shining a light into Scharen’s eyes. Scharen stumbled out of the minivan; he smelled of alcoholic beverages, and he swayed while standing. The officer administered field sobriety tests to Scharen, and then he arrested Scharen for operating a motor vehicle under the influence. Scharen’s breath test revealed that he had a blood alcohol level of .13 percent.
At trial, Scharen’s lawyer asked the trial judge—District Court Judge Keith B. Levy—to instruct the jury on the defense of necessity. Judge Levy declined to give the proposed instruction[.]
Why we conclude that Scharen failed to present a triable issue as to whether his decision to assume control of the motor vehicle, and his decision to operate this vehicle (by turning on the engine), were justified by necessity
A criminal defendant is entitled to a jury instruction on the defense of necessity if the evidence, viewed in the light most favorable to the proposed defense, is sufficient to allow a reasonable fact-finder to conclude: (1) that the defendant committed the charged offense to prevent a significant evil; (2) that, given the circumstances (as the defendant reasonably perceived them), the defendant had no reasonable alternative—no adequate way to avoid this significant evil except by committing the charged offense; and (3) that the harm threatened or caused by the defendant’s crime was not disproportionate to the harm that the defendant sought to avoid by breaking the law.
[…]
The first element is that the defendant committed the charged offense to prevent a significant evil. Scharen argues that he faced a significant evil—injury or death because of the sub-freezing temperatures—if he sat in the unheated vehicle for hours. But AS 11.81.320(a) declares that the defense of necessity is available only “to the extent permitted by common law”. And the common law (as generally applied throughout this country) does not allow a defendant to rely on the defense of necessity if the underlying claim is that the defendant was required to break the law in order to avoid, cure, or alleviate a significant evil of their own making.
As [legal scholars explain], the American jurisdictions that recognize a “necessity” or “choice of evils” defense are in general agreement that the defendant’s creation of the danger or evil will limit the availability of the defense.
[…]
Turning to the facts of Scharen’s case, Judge Levy found that Scharen knowingly created the situation that allegedly required him to turn the vehicle’s engine on. As Judge Levy explained in his ruling, the testimony presented at Scharen’s trial showed that Scharen was sitting in a warm bar, safe from the elements, and that Scharen then made a conscious decision to leave the bar and go sit in the minivan until his wife finished her work at the ski club fund-raiser.
We further note that Scharen’s initial act of taking the keys from his wife and going to wait in the driver’s seat of the minivan was itself illegal. Even if Scharen had never started the engine, his act of assuming physical control of the vehicle constituted the offense of “driving while under the influence”—because, for purposes of this offense, “driving” includes the act of assuming actual physical control of an operable motor vehicle, even if one does not operate the vehicle. […]
Thus, Scharen’s alleged necessity to turn the engine on (so that he could stay warm) was created by Scharen’s own unlawful act of assuming physical control of the vehicle and waiting in the car for his wife.
Because, under Alaska law, the necessity defense is available only to the extent allowed by the common law, and because Scharen made a conscious choice to unlawfully put himself in a position where he would need to start the engine to keep warm, Scharen had no legal right to rely on a defense of necessity.
[…]
Turning to the second element of the necessity defense, we conclude that Scharen likewise failed to present sufficient evidence to justify a verdict in his favor on this element of the defense—the requirement that, given the circumstances (as the defendant reasonably perceived them), the defendant had no reasonable alternative method to avoid the significant evil except by committing the charged offense.
The pertinent circumstances were that Scharen went to sit in the minivan until his wife was done with the ski club fund-raiser, and it was so cold outside that Scharen could not realistically continue to sit in the vehicle unless he turned the engine on and generated heat. But as Judge Levy noted, Scharen had several alternatives to continuing to sit in the minivan.
First, Scharen could have returned to the bar. Scharen’s only ostensible reason for leaving the bar in the first place was that he or his wife might potentially be embarrassed because Scharen was visibly falling asleep at the fund-raiser. The bar remained an easily available and adequate alternative solution to the problem of the cold weather.
[…]
[Moreover], even if we assume that Scharen could not lawfully stay in the bar, there were other ways he might have dealt with the situation. It was early in the evening, and other businesses and restaurants were open in downtown Juneau. Alternatively, Scharen might have asked a friend or other member of the ski club to drive him home, or to lend him the money to take a cab. It appears, from Scharen’s testimony, that he did not even consider these alternatives. Here is the pertinent excerpt of Scharen’s cross-examination by the prosecutor, in which the prosecutor asked Scharen why he had not taken a cab home:
Prosecutor: So, Mr. Scharen, you indicated that you had credit cards on you, but that you didn’t have any [credit remaining] on them?
Scharen: No, there [was] nothing on them.
Prosecutor: So, as a matter of personal convenience, you couldn’t have called a taxicab to go home?
Scharen: No.
Prosecutor: [You] couldn’t have called a friend?
Scharen: Not really. I mean, why would I call a friend when I was waiting for my wife?
Based on this record, we conclude that no reasonable fact-finder could have decided in Scharen’s favor on the question of whether Scharen had other adequate methods (apart from breaking the law) to deal with the situation.
Because there was insufficient evidence to support findings in Scharen’s favor on the first and second elements of necessity, the third element of the necessity defense is moot. The question presented by this third element—whether the harm threatened or caused by the defendant’s crime was disproportionate to the harm that the defendant sought to avoid by breaking the law—does not arise unless the evidence would support a finding in the defendant’s favor on the first two elements of the necessity defense.
For these reasons, we uphold Judge Levy’s decision not to instruct the jury on Scharen’s proposed necessity defense.
Conclusion
The judgement of the district court is AFFIRMED.
You be in the judge (7.1) …
In August of 2006, Jennifer was drinking at home with her boyfriend, when he turned abusive and threatened to burn down the house. Jennifer fled the house and called 911 asking help. 911 dispatched police to Jennifer’s house. Instead of waiting for the police, Jennifer got in her van and drove away fleeing to her mother’s house. On the way to her mother’s house, Jennifer drove past the police station (who, unbeknownst to the officers, drove past Jennifer towards her house), past a well-lit shopping mall, and past several open businesses. An unrelated officer saw Jennifer speeding, pulled her over, and could immediately tell she was severely intoxicated. Jennifer was arrested for felony driving under the influence (Jennifer had two prior DUIs). Do you think Jennifer will be successful in relying on the affirmative defense of necessity? Why or why not? Check your answer at the end of the chapter.
Duress
If a person commits the crime under pressure caused by the threat of force from another human being, as opposed to nature, an act of God, or circumstances outside the defendant’s control, the defendant may rely on the defense of duress. Duress justifies a criminal act when another person is threatening to kill or seriously injure a person unless the defendant commits the crime. AS 11.81.440. Duress, like necessity, is an affirmative defense.
Figure 7.5 AS 11.81.440 – Duress
Duress consists of three elements. First, the injury threatened must be immediate. A hypothetical or future injury will not suffice. Second, the defendant must have a reasonable belief that the threat will be carried out. Third, the injury threatened must be unavoidable. The defendant must not have an opportunity to escape. Duress, like necessity, is not available if the defendant placed himself in the situation.
Example of No Duress
Scott and Dale conspire to burglarize Harvey’s residence because they believe Harvey keeps significant cash inside the home. The two co-conspirators intend to burglarize the residence when Harvey is not home, but when Scott knocked on the door to make sure no one was home, Harvey answered the door. Scott told Harvey that they (Scott and Dale) had car problems and needed to use the telephone. After they entered the house, Dale pulled a gun and held Harvey at gunpoint. Dale ordered Scott to tie up Harvey or Dale would kill both Harvey and Scott. Dale then ransacked the house, stealing Harvey’s cash. As they left the house, Dale shot and killed Harvey (to prevent Harvey from calling the police). Days later, Scott was arrested and charged with murder, robbery, burglary, and theft. At trial, Scott claimed that he did not know Dale was going to use a gun and that he went along with the crime out of fear for his own safety. Scott claimed that if he did not participate Dale would have killed him.
In this scenario, Scott is not entitled to claim duress. The situation giving rise to Dale’s threat of force against Scott was a situation that Scott created. Had Scott not participated in the burglary, he would not have needed to claim duress. Note, however, that Scott may be entitled to an affirmative defense to the specific charge of homicide (i.e., felony murder), but we will explore that in a different chapter.
You be in the judge (7.2) …
Juan is a native of Bogota, Colombia and was a taxi driver there. He was approached by one of his passengers, Jorge, and offered a job to swallow cocaine-filled balloons and transport them to the United States. Juan initially agreed, but several days later, changed his mind and told Jorge that he would not transport the drugs. Jorge told Juan that his failure to cooperate would result in the death of his wife and three-year-old child. Juan transported the cocaine to the United States as planned. When Juan arrived at the customs inspection point, he consented to have his stomach x-rayed. The x-rays revealed the cocaine in Juan’s stomach. Juan was indicted for drug-trafficking. Do you think Juan will be able to assert the defense of duress? Why or why not? Check your answer at the end of the chapter. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/07%3A_Criminal_Defenses_(Justification)/7.03%3A_Other_Use-of-Force_Justification_Defenses.txt |
Although consent is a defense to certain crimes, it is generally not a codified justification like self-defense or necessity. Instead, consent – or the lack thereof – is normally subsumed into the essential elements of a crime. For this reason, consent is akin to the failure of proof defense discussed at the beginning of the chapter. For example, a person is not guilty of theft if the person has the consent of the property owner to take the item. A person may not be convicted of vandalism if the owner consented to the property damage. Consent most commonly arises in sexual assault cases, in which the defense contends the sexual act was consensual. Consensual sex is generally not a crime. In all sexual assault prosecutions, lack of consent is a criminal element that the government must prove beyond a reasonable doubt. AS 11.41.410 et. seq. In some sex offenses, a person cannot consent as a matter of law. Sexual abuse of a minor (statutory rape) is an example where the victim cannot consent due to his or her age. We explore sexual assaults and lack of consent in subsequent chapters. In this section, we explore consent to nonsexual conduct.
There are some offenses – generally crimes against public welfare – in which consent will not operate as a defense. Thus, even if the prohibited act is consensual, it remains a crime. For example, prostitution criminalizes consensual sex between two adults. AS 11.66.100. Notably, consent is not a defense to “fighting.” Fighting – a mutual understanding to “trade blows” – is criminalized as Disorderly Conduct. AS 11.61.110(a)(5); Dawson v. State, 264 P.3d 851 (Alaska App. 2011). Recall that a person may not claim self-defense if engaging in mutual combat (e.g., fighting). AS 11.81.330(a)(1).
Outside of sexual assaults, consent is a rare defense. Generally, consent can operate only as a defense against some thefts, injury that occurs during a sporting event, and crimes that do not result in serious bodily injury. See Wayne R. LaFave, Substantive Criminal Law §6.5(a) (3rd ed. 2018). Thus, a hockey player is not guilty of assault when she forcibly checks an opposing player during a hockey game. On the other hand, a person may not consent to be murdered. AS 11.41.120(2).
Regardless of the circumstance, consent must always be voluntarily and knowingly given. Consent is not voluntary if it is induced by force, the threat of force, or trickery. Consent is not considered knowing if it is given by an individual who is too young, mentally incompetent, or intoxicated.
Example of Unknowing Consent
Jim and John are roommates and obsessive bodybuilders. During a party, Jim drinks several shots of vodka and challenges John to a test of core strength. Jim tells John that he can sustain more punches to his stomach than John. Jim tells John to hit him in the stomach as hard as he can, not out of anger or malice, but humor. Jim promises not to wince. John cannot likely claim consent as a defense to the assault in the case. Although Jim consented to the assault, he did so while intoxicated and clearly was unable to make a reasoned decision. Jim’s consent was not given knowingly and was likely invalid.
Example of Involuntary Consent
Let’s change the example with Jim and John. Let’s assume that neither Jim nor John have consumed any alcohol. Instead, John tells Jim that he will stab him with a kitchen knife unless Jim lets John punch him in the stomach. In this scenario, John is likely guilty of assault. Jim’s consent to the assault was in response to John’s threat of physical harm. Thus, Jim’s consent was not given voluntarily and thus invalid.
Example of Legal Consent
We’re not done with Jim and John. Let’s assume that Jim and John are performing at a local bodybuilding show and want to show the audience their core strength. Jim tells John, in front of a large audience, to punch him in the stomach as hard as he can. Jim brags to the audience that he will not wince. Under this scenario, it appears that Jim’s consent was knowing and voluntarily given. Unless Jim suffers serious physical injury from the punch, John can likely rely on Jim’s consent to defend again the charge of assault. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/07%3A_Criminal_Defenses_(Justification)/7.05%3A_Consent.txt |
Summary
The bedrock principle of the criminal justice system is the presumption of innocence. All defendants, no matter how strong the evidence may appear, begin a trial with a clean slate. All are presumed innocent of the crime charged. For this reason, a defendant can simply rely on the government to fail to prove the defendant’s guilt beyond a reasonable doubt. Such a defense is referred to as a failure of proof defense. Most defenses found within criminal law are statutory. A perfect defense results in the defendant being acquitted of the crime charged. An imperfect defense results in the defendant being convicted of a less serious, but related crime. A criminal defense requires the government to disprove its existence beyond a reasonable doubt, similar to a failure of proof defense. An affirmative defense raises an issue separate from the elements of the offense where the defendant has the burden of persuasion by a preponderance of the evidence. A factual defense is grounded in the facts of the case, while a legal defense depends on a statute or common-law principle. An example of a factual defense is an alibi defense, which asserts that the defendant could not have committed the crime because he was not present at the time the crime occurred. An example of a legal defense is the expiration of the statute of limitations, which means it is too late to prosecute the defendant for the offense.
Defenses are also categorized as either a justification or an excuse. A justification defense focuses on the offense and deems the conduct worthy of protection from criminal responsibility. An excuse defense focuses on the defendant and excuses his or her conduct under the circumstances.
Self-defense justifies the defendant’s conduct in using physical force to protect oneself. The government is required to disprove self-defense beyond a reasonable doubt and it is a perfect defense. Self-defense is based on two basic elements – necessity and proportionality. Self-defense is only available if the defendant faces an unprovoked, imminent attack and the degree of force used in response is necessary to avoid the attack and was objectively reasonable under the circumstances. Fear of likely, future harm is insufficient to satisfy the imminency requirement of self-defense. Deadly force is any force that can kill under the circumstances. Deadly force can be used in self-defense only if the defendant is faced with imminent death, serious bodily injury, or the commission of a serious felony. A defendant need not retreat before resorting to deadly force, provided that the defendant is in a place he is legally entitled to be – trespassers must retreat before using deadly force.
A person may defend another to the same extent as the person may defend themselves under the law of self-defense. If a defendant honestly, but reasonably mistakes the need to defend another, the defendant may still claim the defense of others. A defendant may use nondeadly force to prevent the imminent threat of damage, loss, or theft of property. Real property is land and anything permanently attached to it, while personal property is any movable object. A trespasser may be ejected from real property using nondeadly force.
A person may use deadly force to prevent arson or burglary of an occupied dwelling. This expanded use of force is referred to as the castle doctrine. A person may not use deadly force to prevent arson or burglary of an unoccupied building. The defense of habitation focuses on the protection of life within the building, and not on the property itself.
Law enforcement has the right to use force in circumstances beyond that of an ordinary citizen. A law enforcement officer may use reasonable nondeadly force, and threaten the use of deadly force, when arresting a criminal suspect, making a lawful investigatory stop, and when recapturing an escapee. A police officer may use deadly force when the officer reasonably believes deadly force is necessary to arrest a person committing a violent felony, escape from prison while armed, or if the person is engaging in highly dangerous behavior likely to result in death or serious injury. The level and degree of force are considered seizures under the Fourth Amendment and are analyzed under an objectively reasonable standard.
The defense of necessity permits the defendant to commit a crime if the harm caused is less severe than the harm that will occur if the crime is not committed. Necessity is sometimes referred to as the choice of evils defense. Duress, a closely related defense, can justify criminal behavior if the defendant is imminently threatened with serious bodily injury or death.
Consent may also be a defense to criminal liability, but is normally analyzed under a failure of proof defense. The victim may consent to the defendant’s conduct provided that the consent was given knowingly and voluntarily. Consent is normally a defense to sex offenses, or conduct occurring during a sporting event, and the conduct does not involve serious bodily injury or death.
Key Takeaways
• A failure of proof defense focuses on the elements of the crime and prevents the prosecution from meeting its burden of proof. An affirmative defense is a defense that raises an issue separate from the elements of the crime. Affirmative defenses require the defendant to prove the defense by a preponderance of the evidence.
• An imperfect defense reduces the severity of the offense; a perfect defense results in an acquittal.
• A justification defense asserts that the defendant’s criminal conduct was justified under the circumstances. An excuse defense asserts the defendant should be excused for their conduct.
• If the basis for a defense is an issue of fact, it is called a factual defense. If the basis for a defense is an issue of law, it is called a legal defense.
• Self-defense is a defense based on the justification that allows a defendant to use physical force to protect herself from harm
• Deadly force is any force that can produce death or serious injury. An individual does not have to die for the force to be deemed deadly.
• Self-defense is built upon the assumption that the force used was necessary and proportional to the harm faced. A person may only use self-defense when faced with an imminent threat of harm. Likely, future harm is insufficient to justify self-defense. A defendant may only use an objectively reasonable degree of force in response to an objectively reasonable fear of harm.
• Deadly force is appropriate in self-defense when the attacker threatens death, serious bodily injury, or specific serious felonies.
• The duty to retreat doctrine is a common-law rule requiring a defendant to retreat if it is safe to do so, instead of using deadly force in self-defense. The stand-your-ground doctrine is a rule allowing the defendant to use deadly force if appropriate in self-defense, rather than retreating.
• Defense of others has the same elements as self-defense: the individual defended must be facing an unprovoked, imminent attack, and the defendant must use a reasonable degree of force with a reasonable belief that force is necessary to repel the attack.
• The defendant can use nondeadly force to defend real or personal property if the defendant has an objectively reasonable belief that an imminent threat of damage, destruction, or theft will occur.
• Property owners can use reasonable nondeadly force to eject a trespasser.
• Only nondeadly force may be used to defend property; deadly force may be used to defend against an arson or burglary of an occupied building.
• Use of force by law enforcement is considered a seizure under the Fourth Amendment, so law enforcement cannot use deadly force to apprehend or arrest a criminal suspect unless there is probable cause to believe the suspect will inflict serious physical injury or death upon the officer or others.
• Three elements are required for the defense of necessity: the criminal act must be done to prevent a significant evil, there was no adequate alternative, and the harm caused must not have been disproportionate to the harm avoided.
• Choice of evils is often based on nature or an act of God; duress is generally brought on by another individual.
• Two elements are required for the consent defense: the defendant must consent knowingly (cannot be too young, mentally incompetent, or intoxicated) and voluntarily (cannot be forced, threatened, or tricked).
• Three situations where consent can operate as a defense are sexual offenses, situations that do not result in serious bodily injury or death, and sporting events.
Answers to Exercises
From Other Us-of-Force Defenses
1. Melanie cannot use the defense of others as a defense to murder. Melanie can defend Colleen only to the same extent she could defend herself. Nothing in the fact pattern indicates that Colleen could defend herself using deadly force. Thus, Melanie could be successfully prosecuted for criminal homicide in this situation.
Answer to Is Cannibalism a Crime?
In Regina v. Dudley & Stephens, 14 Q.B.D. 273 (1884) an English court found the shipwreck survivors guilty of murder and sentenced them to death (later commuted to six months in jail). While the men sought to justify their actions based on necessity, the court rejected the defense. Human life, according to the court, is paramount. Human life should be protected if at all possible. Neither probable nor likely death justifies cold-blooded murder. Killing another human being is only allowed when life itself is physically threatened. Otherwise, the law would be required to determine whose life was paramount. The circumstances that led to the killing of Richards (the teenage boy) was murder, especially when Richards was given no choice in the matter.
Joseph Simeone’s essay, “Survivors” of the Eternal Sea: A Short True Story, 45 St. Louis U. L.J. 1123 (2001) provides a much more thorough and complete description of the events. Simeone’s essay is available through the Consortium Library at the University of Alaska Anchorage using your student credentials.
Answers to You Be the Judge…
Answer to You Be the Judge … (7.1)
• Jennifer likely has a valid defense of necessity for her initial decision to drive away from her boyfriend. Physical harm is a significant evil; Jennifer has the right to avoid injury. Fleeing instead of waiting for police to arrive is an appropriate alternative. Finally, driving intoxicated to prevent immediate physical harm is not disproportionate to the harm caused by driving. However, the necessity likely ended when Jennifer drove past a police station, a shopping mall, and open businesses. To claim necessity, Jennifer must stop violating the law as soon as its danger is averted. Compare Reeves v. State, 764 P.2d 324 (Alaska App. 1988) and Greenwood v. State, 237 P.3d 1018 (Alaska 2008). Both Reeves and Greenwood involved substantially similar fact patterns – a victim of domestic violence driving intoxicated to avoid being assaulted. In Reeves, the court found the victim did not have a necessity defense because she did not stop at the police station, but instead drove past a family member’s home. Conversely, in Greenwood, the court found the victim did have a valid necessity defense in part because she fled the house to a well-lit parking lot and flagged down the oncoming police officer.
Answer to You Be the Judge (7.2)
• Juan has demonstrated all of the elements of duress: immediacy, a well-grounded fear, and inescapability. Juan reasonably believed his family would be immediately killed if he did not comply and his alternative was either go to the police or flee, forcing him to leave his family in peril. The law only requires a defendant to act reasonably. Here, Juan presented a triable claim of duress. See U.S. v. Contento-Pachon, 723 F.691, 693-94 (9th Cir. 1984). | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/07%3A_Criminal_Defenses_(Justification)/7.06%3A_End-of-Chapter_Material.txt |
This chapter provides a brief overview of various criminal defenses based on excuse, including defenses related to mental illness. Remember that excuse defenses focus on the defendant. A defendant is not claiming they were justified in their actions, but that they should not be held responsible for their actions because circumstances prevented them from acting lawfully. Excuse defenses are perfect defenses and are affirmative defenses in many situations.
Mental Illness
It is well known that mental illness plays a large role in the criminal justice system. By most accounts, correctional institutions (i.e., prisons and jails) account for the largest percentage of mental health providers in the country. Alaska is no different. On any given day, 65% of Alaska inmates suffer from mental illness or Substance Use Disorder (SUD). See Hornby Zeller Associates, Inc., Trust Beneficiaries in Alaska’s Department of Corrections (May 2014). The law has long recognized that a person who suffers from a serious mental illness may be treated differently in the criminal justice system. A person’s mental illness frequently influences how the government proceeds with a criminal prosecution, such as preventing a person from standing trial (competency), relieving a person from criminal responsibility (insanity), or resulting in punishment despite their mental illness (GBMI).
Not all mental illnesses affect culpability. Only a person suffering from a mental disease or defect may rely on an excuse defense. AS 12.47.130(5). A mental disease or defect means a disorder of thought or mood that substantially impairs a person’s ability to cope with the ordinary demands of life. Mental diseases or defects are not limited to psychological disorders, but include mental disabilities caused by traumatic brain injury or other intellectual and developmental disabilities.
Competency
To understand the defense of insanity, one must first understand, and differentiate it from, competency. Competency refers to a person’s cognitive ability to stand trial. Competency requires a defendant to understand the proceedings against him and be able to assist in his own defense. If a defendant is incompetent as a result of a mental disease or defect, the defendant may not be tried, convicted, or sentenced for a criminal offense. AS 12.47.100. Competency is a constitutional barrier to criminal charges. Competency is not a defense to criminal behavior. Instead, a criminal defendant has a constitutional due process right to understand the nature of the proceedings against him. It is fundamentally unfair to punish a person who does not understand the actions being taken against him. A defendant must have a rational and factual understanding of the proceeding against him and have sufficient present ability to communicate with his lawyer with a reasonable degree of rational understanding. See Dusky v. United States, 362 U.S. 402 (1960). Note however, the Constitution only requires a minimal level of competency. The defendant need not be able to articulate the nuances of criminal law or the nature of the proceedings against him. The law only requires a basic understanding of the system and the accusations.
Competency refers to the defendant’s condition at the time of the court proceeding, not at the time of the offense. Competency is a fluid concept; it is not static. A person’s competency can change throughout a court proceeding. Although a person’s incompetence must be caused by a mental disease or defect, the question of competency is a legal question, not necessarily a medical question. Although medical opinions inform a judge in determining a person’s competency, the ultimate decision rests with the court and not medical professionals. Criminal defendants are presumed competent. The party challenging competency has the burden to prove the defendant’s incompetence.
Gamble v. State, 334 P.3d 714 (Alaska App. 2014)
In the following case, the court is faced with the question of how much weight to give a defendant’s attorney’s opinion about the defendant’s competency. Notice how the trial court describes the defendant’s understanding of the court process and how this informed its final decision on competency.
334 P.3d 714
Court of Appeals of Alaska.
Johnnie J. GAMBLE, Appellant,
v.
STATE of Alaska, Appellee.
No. A–11042.
Sept. 19, 2014.
OPINION
ALLARD, Judge.
After being charged with three counts of violating a domestic violence protective order, Johnnie J. Gamble was found incompetent to stand trial and committed to the Alaska Psychiatric Institute (API) for 90 days in an effort to restore him to competency. At the end of the 90–day commitment, the trial court concluded that Gamble was competent to proceed to trial, despite his attorney’s continuing objections that Gamble could not meaningfully participate in his own defense. Gamble was subsequently convicted of two counts of violating a protective order.
Gamble appeals, arguing that the trial court erred in finding that he was competent to stand trial. For the reasons explained in this opinion, we affirm the trial court’s ruling.
Facts and proceedings
The State charged Gamble in two separate cases with three counts of violating a domestic violence protective order. Shortly after Gamble’s arraignment, Gamble’s attorney requested a competency evaluation of Gamble to determine if he was legally competent to stand trial.
Dr. Lois Michaud, a forensic psychologist at API, conducted a competency evaluation of Gamble on January 19, 2011. Dr. Michaud reported that Gamble was very delusional and would be unable to consult with his attorney in a rational manner or present a rational defense. She observed that Gamble’s delusions included his belief that he had already been to trial and that he needed to talk to a physicist because, in his words, “the theory of causality, cause and effect, everything is created by God and every physical thing possibly has already happened and can happen again.” Dr. Michaud concluded based on the intensity and intrusiveness of Gamble’s delusions that he was not competent to stand trial.
Superior Court Judge [George], found Gamble incompetent to stand trial. Pursuant to AS 12.47.110(a), Judge George then ordered Gamble committed to API for 90 days for further evaluation and possible restoration to competency.
Near the end of the 90 days, Dr. Michaud re-evaluated Gamble and concluded that his mental condition had improved under the structured setting of the psychiatric hospital and that he was now competent to stand trial. At the subsequent competency hearing, Dr. Michaud testified that when she first interviewed Gamble in January, his delusional ramblings and the intrusiveness of his delusional thoughts made him very difficult to interview. Gamble had greatly improved by the time he was re-evaluated, and his delusions were significantly “less intrusive” than before. Dr. Michaud concluded that while Gamble’s delusions had not entirely disappeared, they no longer presented the same barrier to coherent and rational communication as before.
However, Dr. Michaud specifically warned the court and the parties that exposure to an unstructured environment (like jail or trial) could cause Gamble’s delusions to become more intrusive, and that Gamble’s attorney “would be the first to know” if Gamble began to experience the type of active delusions that would render him incompetent.
Gamble’s attorney disagreed with Dr. Michaud’s conclusion that Gamble was competent to stand trial. The attorney argued that the nature of Gamble’s delusions—his belief that everything happens in a loop, and that everything has happened before, including his trial—meant that Gamble was unable to effectively assist in his own defense, and that his case should therefore be dismissed[.]
Judge George concluded that the mere existence of Gamble’s delusions, standing alone, did not necessarily prevent him from communicating with a reasonable degree of rational understanding with his attorney or otherwise prevent him from meeting the standard for competency. After observing Gamble’s demeanor at the second competency hearing, the court found that Gamble was doing better and that he was not in one of his “more agitated states.” The court further found that Gamble “appreciate[d] the nature of the proceedings,” understood the role of the parties and court, and was able to speak and convey thoughts to his attorney, including his various disagreements with his attorney’s litigation strategy. The court therefore found Gamble competent to stand trial[.]
[…]
The case then went to trial. The jury convicted Gamble of two counts of violating a protective order and acquitted him of the third count.
This appeal followed.
Did the trial court err in finding Gamble competent to stand trial?
Under Alaska law, a defendant is incompetent to stand trial if, as a result of a mental disease or defect, the defendant is “unable to understand the proceedings against the defendant or to assist in the defendant’s own defense.” This standard necessarily incorporates the federal constitutional standard for competency to stand trial, which requires a defendant to have a rational and factual understanding of the proceedings against him and to have a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.
A defendant who is incompetent to stand trial may not be tried, convicted, or sentenced for the commission of a crime so long as the incompetency exists. The conviction of a defendant who is not competent to stand trial violates due process of law.
Because the integrity of the judicial proceeding is at stake when the competency of a criminal defendant is in question, a trial court has a duty to order a competency evaluation whenever there is good cause to believe that the defendant may be incompetent to stand trial. Additionally, because a defendant’s mental state may deteriorate under the pressures of incarceration or trial, a trial court is required to be responsive to competency concerns throughout the criminal proceeding.
In the current case, Gamble does not dispute the trial court’s finding on the first prong of the competency standard. That is, Gamble does not dispute that he understood the proceedings against him. Instead, his challenge is exclusively to the second prong of the competency test—whether he could participate in his own defense and consult with his lawyer with a reasonable degree of rational understanding.
Gamble asserts on appeal, as he did below, that the nature of his delusional beliefs—which made him believe that everything had already happened—prevented him from being able to assist in his defense or communicate with his attorney with a reasonable degree of rational understanding.
But as the Alaska Supreme Court has previously recognized, “[t]he presence of some degree of mental illness is not an invariable barrier to prosecution.” A defendant may have some degree of impaired functioning but still be “minimally able to aid in his defense and to understand the nature of the proceedings against him.” To a large extent, therefore, “each case must be considered on its particular facts.”
Here, the record indicates that the trial court took the competency concerns raised by the defense counsel very seriously. The court held multiple hearings on Gamble’s competency, including a full evidentiary hearing at which the forensic psychologist testified and was questioned by the prosecutor, the defense attorney, and the judge. Moreover, the court did not simply defer to the psychologist’s opinion. Instead, the court made its own independent findings and continued to make additional findings at later hearings, demonstrating the court’s awareness that Gamble’s situation was not necessarily stable and that the highly intrusive delusions that previously presented a barrier to his competency could quickly return.
On appeal, Gamble argues that the trial court should have deferred to the defense attorney’s assertion that Gamble was unable to assist in his defense because the defense attorney was the only person in a position to make that assessment.
We agree that a defense attorney is in a unique position with regard to assessing a defendant’s ability to assist in his own defense and that a defense attorney’s assessment of the defendant’s functioning is therefore an important factor for the court to consider. But ultimately the question of whether the defendant is competent to stand trial is a determination that the trial court must make independently based on all of the information before it. Thus, just as it would be error for the trial court to defer to the forensic psychologist’s assessment of Gamble’s competency, so too would it be error for the trial court to simply adopt the defense attorney’s perspective of the defendant’s incompetency, without making its own independent determination based on all the information before it.
[…]
Given the record before us, we conclude that the trial court did not err in rejecting this argument and in finding that Gamble was competent to stand trial.
Conclusion
We AFFIRM the judgment of the superior court.
In Alaska, if a defendant is found to be incompetent, the court is obligated to commit the defendant to the care of a mental institution for a period of time to achieve “restoration.” AS 12.47.100(b). Since competency is a question of cognitive ability at the time of the proceeding, a criminal defendant may be restored through treatment and medication. If a defendant is not “restorable,” but still dangerous, the defendant may be committed to a mental institution until the person no longer suffers from the mental disability and is no longer dangerous. The government bears the burden of establishing a person is dangerous. If a case is dismissed as a result of incompetence, it is dismissed “without prejudice,” meaning the government can refile criminal charges if the defendant becomes competent at a later date.
Pieniazek v. State, 394 P.3d 621 (Alaska App. 2017)
In the following case, the court expands on how to determine if a defendant is competent. What does it mean to be able to understand the proceedings against oneself and be able to assist in one’s own defense?
394 P.3d 621
Court of Appeals of Alaska.
Stanly PIENIAZEK, Appellant,
v.
STATE of Alaska, Appellee.
February 24, 2017
OPINION
Judge ALLARD.
Stanly Pieniazek was found competent to stand trial following a competency hearing before Fairbanks Superior Court Judge Michael P. McConahy. A jury later found Pieniazek guilty of two counts of third-degree assault for shooting a gun at two state troopers after they responded to a report of a disturbance at Pieniazek’s property in Fairbanks.
On appeal, Pieniazek argues that the superior court erred in determining that he was competent to stand trial. For the reasons explained here, we agree with Pieniazek that the superior court misapplied the factors listed in AS 12.47.100(e) and failed to conduct an independent and contemporaneous assessment of Pieniazek’s competency. Accordingly, we remand Pieniazek’s case to the superior court for reconsideration and, if feasible, a retrospective determination of his competency to stand trial.
Background facts
Pieniazek, a Polish immigrant with limited English proficiency, is eighty years old. The events that gave rise to this case took place in May 2012, when Pieniazek was seventy-five years old. At the time of the shooting, Pieniazek was living in squalor at his property in Fairbanks in a collection of structures connected by self-constructed “tunnels” that witnesses described as dilapidated and unsanitary. Although Pieniazek was appointed a public guardian two years prior, due to his behavior during a separate criminal case, Pieniazek rebuffed his guardian’s attempts to place him in assisted living, and he twice left the facility in which he was placed. The record before the trial court indicated that Pieniazek was employed from 1969 to approximately 1991, when he retired. The record also indicated that although Pieniazek possessed a driver’s license as late as 2011, he was last observed driving in February 2010.
Prior to trial, Pieniazek’s attorney filed a motion for a judicial determination of competency. Pieniazek was then evaluated twice: first by clinical psychologist Dr. Siegfried Fink, who concluded that Pieniazek had dementia and was incompetent to stand trial; and later by state forensic psychologist Dr. Lois Michaud, who rejected Fink’s diagnosis of dementia and instead concluded that Pieniazek was malingering, based on his refusal to communicate with her.
Fairbanks Superior Court Judge Michael McConahy subsequently held a hearing in May 2013 at which Dr. Fink and Dr. Michaud elaborated on their respective diagnoses. In addition, three other witnesses testified: Ruth Retynski, Pieniazek’s public guardian, as well as Fairbanks Correctional Center (FCC) officers Joanne Murrell and Jerry Watson. Murrell and Watson had both dealt extensively with Pieniazek while he was in custody awaiting trial in this case. In relevant part, Retynski, Murrell, and Watson each described a number of Pieniazek’s strange behaviors.
Retynski testified that she struggled to find an assisted living facility for Pieniazek, partly because she could not determine whether his behavior was due to mental illness or dementia. But Retynski also testified that Pieniazek was manipulative, and that there were times during her conversations with Pieniazek that she felt he was pretending not to understand her when she “didn’t give him exactly what he wanted.”
The FCC corrections officers testified that Pieniazek’s mental condition was extremely poor during his incarceration: Pieniazek hoarded and ate spoiled food, refused to shower unless “tricked” into doing so, struggled to complete all but the most simple tasks, generally did not communicate with staff or other inmates, and was kept in administrative segregation for the sake of both his and others’ safety. Officer Murrell testified that Pieniazek had “moments where he knows what he’s talking about … [and] moments where he’s just babbling.” She also testified that Pieniazek would sometimes “in the middle of the night … pack up all his stuff, fold everything up, organize everything, and just bang on the door and [say] open the door, I’m ready to go home.” Dr. Fink also noted in his report that the FCC staff members he interviewed “observed a significant decline in [Pieniazek’s] level of functioning especially in the last year.”
The trial judge found Pieniazek competent to stand trial, crediting Retynski’s and Dr. Michaud’s testimony that Pieniazek was sometimes “communicative.” The trial judge also noted that AS 12.47.100(e) directs a court determining a defendant’s competency to take into account “whether the person has obtained a driver’s license, is able to maintain employment, or is competent to testify as a witness under the Alaska Rules of Evidence.” The trial judge concluded that these conditions had been met in Pieniazek’s case because Pieniazek was “able to maintain employment since he got [to the United States] until his retirement [in 1991]” and that, although Pieniazek did not have a current driver’s license, he had a “currently registered vehicle on his property” in 2011 and “gets around.”
[…] Pieniazek …testified briefly in the current case. In the brief time he was on the stand, he answered his attorney’s initial questions in Polish and then answered his attorney’s later questions with “I don’t know” and silence.
Alaska law regarding competency determinations
Under Alaska law, a criminal defendant is incompetent to stand trial if, “as a result of a mental disease or defect … the defendant is unable to understand the proceedings against the defendant or assist in the defendant’s own defense.” Alaska Statute 12.47.130(5) defines “mental disease or defect” as “a disorder of thought or mood that substantially impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.” The statutory definition further clarifies that “mental disease or defect” also includes “intellectual and developmental disabilities that result in significantly below average general intellectual functioning that impairs a person’s ability to adapt to or cope with the ordinary demands of life.”
A defendant who is incompetent may not be tried, convicted, or sentenced so long as his incompetency exists. The conviction of a defendant who is incompetent violates due process of law.
We have previously emphasized that, “[b]ecause the integrity of the judicial proceeding is at stake when the competency of a criminal defendant is in question, a trial court has a duty to order a competency evaluation whenever there is good cause to believe the defendant may be incompetent to stand trial.” Moreover, “because a defendant’s mental state may deteriorate under the pressures of incarceration or trial, a trial court must be responsive to competency concerns throughout the criminal proceeding.”
The standard for determining lack of competency, although originally formulated in judicial decisions, is now codified in AS 12.47.100. This statute provides that “[a] defendant is presumed to be competent” and that “[t]he party raising the issue of competency bears the burden of proving the defendant is incompetent by a preponderance of the evidence.” When the court raises the issue of competency, the burden of proving the defendant is incompetent “shall be on the party who elects to advocate for a finding of incompetency.”
Alaska Statute 12.47.100(e)-(g) directs the trial court to consider a variety of factors in assessing a defendant’s competency to stand trial. Subsection (e) provides a list of factors that the court is required to consider in determining “whether a person has sufficient intellectual functioning to cope with the ordinary demands of life.” These factors are:
whether the person has obtained a driver’s license, is able to maintain employment, or is competent to testify as a witness under the Alaska Rules of Evidence.
Subsection (f) provides a list of non-exhaustive factors that the court is required to consider in determining “if the defendant is able to understand the proceedings against the defendant.” These factors include:
whether the defendant understands that the defendant has been charged with a criminal offense and that penalties can be imposed; whether the defendant understands what criminal conduct is being alleged; whether the defendant understands the roles of the judge, jury, prosecutor, and defense counsel; whether the defendant understands that the defendant will be expected to tell defense counsel the circumstances, to the best of the defendant’s ability, surrounding the defendant’s activities at the time of the alleged criminal conduct; and whether the defendant can distinguish between a guilty and not guilty plea.
Lastly, subsection (g) provides a list of non-exhaustive factors that the court is required to consider in determining if the defendant is “unable to assist in the defendant’s own defense.” These factors include:
whether the defendant’s mental disease or defect affects the defendant’s ability to recall and relate facts pertaining to the defendant’s actions at times relevant to the charges and whether the defendant can respond coherently to counsel’s questions.
Subsection (g) also provides:
A defendant is able to assist in the defense even though the defendant’s memory may be impaired, the defendant refuses to accept a course of action that counsel or the court believes is in the defendant’s best interest, or the defendant is unable to suggest a particular strategy or to choose among alternative defenses.
Why we remand Pieniazek’s case for reconsideration
As explained above, AS 12.47.100(e)-(g) directs a trial court to consider a variety of factors in determining whether a defendant is competent to stand trial.
[…]
[W]hen the court evaluated the factors listed in AS 12.47.100(e), it did not evaluate these factors in terms of Pieniazek’s current ability to function and cope with the ordinary demands of life. Instead, it evaluated these factors exclusively in terms of Pieniazek’s ability to function in the past—including, at times, the distant past. For example, the trial court noted that “I don’t think anybody is saying that [Pieniazek] currently has an operator license,” but the trial court nevertheless found it significant that “it seems clear that he’s driven in the past, and [ ] had a—in 2011 at least, a currently registered vehicle.” The trial court also found it significant that Pieniazek “maintain[ed] employment since he got here until his retirement” even though Pieniazek’s retirement was in 1991—more than twenty years before the 2013 competency hearing. Lastly, the trial court found it significant that Pieniazek had testified on his own behalf in a prior criminal trial that took place approximately two years earlier. But, as already noted, the prior trial had not included a competency evaluation. Moreover, Pieniazek’s testimony at that prior trial was largely incoherent, and his behavior ultimately resulted in the court appointing him a public guardian.
Taken together, the trial court’s remarks indicate that the court misapplied the factors under AS 12.47.100(e) and failed to adequately investigate whether Pieniazek was competent at the time of trial, rather than at some point in the past. The record also indicates that the court failed to properly document its consideration of the relevant factors under AS 12.47.100(f)-(g).
As the Alaska Supreme Court has previously cautioned, competency is not a static concept, and the trial court’s duty to determine competency is “not one that can be once determined and then ignored.” The need to focus on the defendant’s current level of functioning was particularly acute in this case, given that there had been a diagnosis of progressive dementia from one expert and witness testimony that Pieniazek’s functioning had significantly deteriorated over the last year.
[…]
Conclusion
We REMAND this case to the superior court for reconsideration of the defendant’s competency on the current record[.]
Insanity
Insanity is much different than competency. Insanity refers to whether a person should be criminally responsible for their crime even though they suffer from a severe mental illness. Unlike competency, insanity focuses on the defendant’s culpability at the time of the offense.
Also, unlike competency, there is no constitutional right to an insanity defense. In 2020, the US Supreme Court found that a mentally ill defendant does not have a constitutional right to present an insanity defense at trial. See Kahler v. Kansas, __ U.S. __, 140 S. Ct. 1021 (2020). That said, nearly every jurisdiction authorizes some form of an insanity defense. In fact, as of April of 2021, only four jurisdictions – Kansas, Montana, Utah, and Idaho – do not have an affirmative insanity defense. The insanity defense is the subject of much debate and receives significant attention in the media, in part because it excuses even the most evil and abhorrent conduct, and in many jurisdictions, like Alaska, functions as a perfect defense resulting in an acquittal. But remember, the insanity defense is rarely used, and even more rarely successful. As you will see, it is difficult to prove legal insanity.
The insanity defense is supported by two policies: First, persons who suffer significant and persistent mental disease or defect may not have control over their conduct. This is similar to a defendant who is hypnotized or sleepwalking. Second, severe mental illness may prevent a person from forming the culpable mental state necessary for the crime. Without the ability to control conduct, or the ability to understand that the conduct is morally wrong, there is little moral justification for punishing a legally insane defendant. Treatment, and not punishment, is the appropriate remedy.
Legal insanity differs from medical insanity. While the purpose of a medical diagnosis is to eventually cure the defendant’s mental illness, the purpose of criminal law is to punish criminal behavior. A defendant’s conduct is not excused – even if caused by a mental illness – if the defendant or society can benefit from punishment (through rehabilitation, deterrence, or incapacitation). Most mental diseases or defects do not rise to the level of legal insanity.
In all jurisdictions, the defense of insanity is a creature of statute and, as a result, variations exist. Historically, there are four primary variations of the insanity defense: M’Naghten, irresistible impulse, substantial capacity, and Durham. As you will see, Alaska’s insanity framework is an amalgamation of nearly all of them.
Although insanity operates as a perfect defense and relieves the defendant of criminal responsibility for the crime, a person found not guilty by reason of insanity (NGI) is not immediately released back into the community. Under normal circumstances, if a defendant is NGI, they are civilly committed to a mental institution for treatment. Once the defendant demonstrates that they are not a danger to society due to their mental disease or defect, the defendant is released into the community.
M’Naghten Rule
The M’Naghten Rule is derived from the landmark 1843 British case, M’Naghten, 8 Eng. Rep. 718 (1843). It is often referred to as the right-wrong test. The defendant, Daniel M’Naghten, was under the paranoid delusion that the Prime Minister of England, Sir Robert Peel, was trying to kill him. When he tried to shoot, who he believed to be Sir Peel, he inadvertently shot and killed Sir Peel’s secretary, Edward Drummond. M’Naghten was acquitted of Drummond’s murder by reason of insanity. As a result of the verdict, the House of Lords developed what later became known as the M’Naghten Rule.
The rule contains two prongs. The first prong of the M’Naghten test (sometimes referred to as the “cognitive incapacity” prong) asks whether the defendant knew what they were doing — i.e., whether the defendant understood the nature and quality of their conduct. A defendant does not know the nature and quality of a criminal act if, as the result of a mental disease or defect, the defendant is completely oblivious to what he or she is doing.
The second prong (sometimes referred to as the “moral incapacity” or “wrongfulness” prong) asks whether the defendant could understand that their conduct was wrong — i.e., whether the defendant appreciated the wrongfulness of their actions. A defendant does not appreciate the wrongfulness of their actions when they engage in the criminal act because they are acting under the command of a divine being, caused by their mental disease or defect.
A defendant need only satisfy one of the prongs. As you can see, the M’Naghten rule focuses on the defendant’s cognitive awareness of his actions, rather than his ability to control his conduct. Since its creation, the M’Naghten rule has been the primary test of criminal responsibility in the United States, and the exclusive test in a majority of American jurisdictions, England, and Canada.
Example of Insanity under the M’Naghten rule
Susan, a diagnosed schizophrenic, drowns her two young children in the bathtub. Susan’s husband finds the deceased children when he returns home from an errand. Susan claims that she was directed to drown her children by Zeus, the greatest of all gods. According to Susan, Zeus told her that her children were not children, but blue squares and that to enter heaven, Susan had to eliminate all blue squares on earth. At the murder trial, Susan pleads not guilty by reason of insanity.
In a M’Naghten rule jurisdiction, Susan could successfully claim she was suffering from a mental disease or defect (schizophrenia) and, as a result of her mental illness, she did not know the nature or quality of her conduct (she thought her children were blue squares), nor did she appreciate the wrongfulness of her conduct (Zeus told her to eliminate blue squares). Thus, under the M’Naghten Rule, Susan is likely not guilty by reason of insanity. Susan would likely be committed to a mental institution until she is no longer a danger to society. Susan would not be punished for her conduct.
Irresistible Impulse Test
Another variation of the insanity defense is the irresistible impulse test. The irresistible impulse test focuses on the defendant’s cognitive awareness and the defendant’s will. The crux of the test is violation, or free choice. As a result of the person’s “disease of mind” the defendant did not know right from wrong, and the mental illness destroyed the defendant’s free will and caused the defendant to commit the criminal act. The challenge with the irresistible impulse test is distinguishing between conduct that can be controlled and conduct that cannot. The irresistible impulse test is rejected by most jurisdictions. In some cases, the irresistible impulse test is easier to prove than the M’Naghten rule, resulting in the acquittal of more mentally ill defendants.
Substantial Capacity Test
The substantial capacity test is the insanity test set forth in the Model Penal Code, which considers a defendant legally insane if, as a result of mental disease or defect, they lacked “substantial capacity either to appreciate the wrongfulness of their conduct or to conform [their] conduct to the requirements of the law.” Model Penal Code §4.01(1). The substantial capacity test combines the cognitive element of M’Naghten with the volitional element of the irresistible impulse insanity, thus resulting in an expanding type of mental illness constituting “legal insanity.” See e.g.,Lord v. State, 489 P.3d 374, 381 (Alaska App. 2021) (Allard, J. concurring).
It is easier to establish legal insanity under the substantial capacity test because both the cognitive and volitional elements are more flexible. Unlike the M’Naghten rule, the substantial capacity test relaxes the requirement for the complete inability to understand or know the difference between right and wrong. Instead, the defendant must lack substantial, not total, capacity. The “wrongfulness” in the substantial capacity test is “criminality,” which is a legal wrong, not a moral wrong. Further, unlike the irresistible impulse insanity defense, the defendant must lack substantial, not total, ability to conform their conduct to the requirement of the law.
The Durham Rule (Product Test)
The final insanity test we will explore is the Durham rule, which is currently used in only one jurisdiction – New Hampshire, where it has been used since the late 1800s. The Durham rule was also adopted by the Circuit Court of Appeals in Durham v. U.S., 214 F.2d 862, 874-75 (D.D. Cir.1954), and articulated legal insanity as “an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.” The Durham rule is sometimes referred to as the product test. Generally speaking, the Durham rule is akin to a proximate causation analysis – that is, did the defendant’s mental disease or defect cause the criminal conduct.
The Court failed to provide definitions of product, mental disease, or mental defect, resulting in it being very difficult to apply. The test, originally designed to be hyper-flexible and intended to widen the range of relevant expert testimony available to the jury, resulted in inconsistent jury verdicts. See e.g., Washington v. U.S., 390 F.2d 444 (D.D.Cir. 1967). The test was used in the District of Columbia for nearly twenty years before being superseded by federal statute. See e.g., 18 U.S.C. 17 (2022). The federal government has abandoned the Durham rule in favor of a M’Nagthen-style statutory test.
Alaska’s History of Culpability Verdicts
Alaska has a unique approach to legal insanity. From statehood until 1972, Alaska largely followed the M’Naghten rule of legal insanity. In 1982, the Alaska legislature revised Alaska’s insanity laws in response to several high-profile cases, including the Charles Meach murder trial. Charles Meach killed four teenagers in Russian Jack Park after being released from the Alaska Psychiatric Institute (API) following an earlier murder acquittal by reason of insanity. The Alaska legislature eliminated the moral incapacity/wrongfulness prong of the M’Naghten test, resulting in a highly restrictive definition of insanity – the single cognitive incapacity prong (“the nature and quality” prong). Alaska also created a GBMI verdict that included the moral culpability prong and the substantial capacity prong. No other jurisdiction has taken this approach to its insanity defense.
The More You Know…
In 1982, Charles Meach was charged with killing four teenagers in Russian Jack Park. Meach pled “not guilty because of mental disease or defect,” and shortly thereafter the Alaska legislature substantially revised Alaska’s insanity laws. The case received significant notoriety because Meach successfully used the same plea in 1973 after he was acquitted by reason of insanity of brutally murdering a woman he met at a topless bar. The New York Times covered the story and the resulting change in the law. See Wallace Turner, New Law on Insanity Plea Stirs Dispute in Alaska, N.Y. Times, June 22, 1982 at D:27. The article can be accessed through the Consortium Library at the University of Alaska Anchorage, using your student credentials. For additional information, Alaska Court of Appeals Chief Judge Allard outlined the history of Alaska’s insanity laws in her concurring opinion of Lord v. State, 489 P.3d 374, 381 (Alaska App. 2021) (Allard, J. concurring).
In Alaska, insanity is an affirmative defense. The defendant has the burden to prove that they were legally insane at the time the crime was committed. Insanity is a perfect defense, and the defendant who successfully proves insanity must be acquitted of criminal wrongdoing.
Figures 8.1 & 8.2 – AS 12.47.010 Insanity Statute and Diagram
Guilty But Mentally Ill
Alaska’s guilty but mentally ill (GBMI) verdict is a novel verdict and one specially created by the legislature. See State v. Clifton, 315 P.3d 694 (Alaska App. 2013). When the trier of fact enters a verdict of GBMI, the trier of fact is finding that “because of mental disease or defect, the defendant lacked the substantial capacity either to appreciate the wrongfulness of their conduct or to conform their conduct to the requirements of the law.” See id. Approximately thirteen states have adopted similar GBMI laws.
Although legal insanity is an affirmative defense that the defendant must prove by a preponderance of the evidence, GBMI is an alternative verdict that can be raised by either the government or the defendant. See State v. Lewis, 195 P.3d 622, 639 (Alaska App. 2008).
Alaska’s GBMI verdict is uniquely punitive. Unlike a defendant found guilty (but not mentally ill), a GBMI defendant is ineligible for mandatory and discretionary parole while they are receiving mental health treatment for their mental illness. Thus, a GBMI defendant is required to serve the full portion of their sentence in custody while they suffer from a mental illness that causes the defendant to be dangerous to the public. AS 12.47.050(b). This rule causes a perverse result: defendants have an incentive to deny the existence of their mental illness during trial to avoid the harsh consequences of GBMI.
Figures 8.3 & 8.4 – AS 12.47.030. Alaska GMBI Statute and Diagram
Lord v. State, 262 P.3d 855 (Alaska App. 2011)
Cynthia Lord, the defendant in the following case, murdered her three sons while unquestionably suffering a severe, persistent mental illness. As you read the opinion, pay close attention to how the Court distinguishes between a legally insane defendant and a guilty but mentally ill defendant.
262 P.3d 855
Court of Appeals of Alaska.
Cynthia LORD, Appellant,
v.
STATE of Alaska, Appellee.
Nov. 4, 2011.
OPINION
COATS, Chief Judge.
Cynthia Lord was charged with three counts of murder in the first degree for killing her three sons, Christopher, Michael, and Joseph. Superior Court Judge Philip R. Volland conducted a non-jury trial. Lord asserted that she was not guilty by reason of insanity. Judge Volland instead found that Lord was guilty but mentally ill.
Lord asserts that Judge Volland erred in reaching this verdict. She contends that she established that she was not guilty by reason of insanity by showing that she did not “appreciate the nature and quality” of her conduct. She also attacks Judge Volland’s interpretation of the Alaska statutes defining the defense of insanity, and argues that those statutes are unconstitutional.
In this decision we uphold Judge Volland’s verdict that Lord was guilty but mentally ill. We also uphold the constitutionality of the Alaska statutes that define the defense of insanity.
Alaska’s insanity defense
Before 1972, Alaska applied a version of the M’Naghten test. Under this test, a defendant could be found not guilty by reason of insanity if she either did not appreciate the nature and quality of her conduct or if she did not understand the wrongfulness of her conduct. In 1972, the Alaska Legislature added the “substantial capacity test,” which allowed the defense of insanity when the defendant lacked the substantial capacity to conform her conduct to the requirements of the law.
In 1982, the legislature amended AS 12.47, greatly limiting the defense of insanity. There are now two ways for a defendant to gain an acquittal as a result of insanity. Under AS 12.47.010(a), the defendant can establish insanity as an affirmative defense if the defendant “was unable, as a result of mental disease or defect, to appreciate the nature and quality of [her] conduct.” […]
The greatest change in the statutes governing the insanity defense was the creation of the verdict of “guilty but mentally ill.” Under AS 12.47.030, a defendant who engages in criminal conduct is guilty but mentally ill if, because of a mental disease or defect, the defendant lacked “the substantial capacity either to appreciate the wrongfulness of that conduct or to conform that conduct to the requirements of the law.” Under the law as it existed prior to the 1982 amendments, a defendant would be found not guilty by reason of insanity under this standard.
A defendant found guilty but mentally ill is not relieved of criminal responsibility. […] The statute directs the Department of Corrections to provide mental health treatment to the defendant until the defendant “no longer suffers from a mental disease or defect that causes the defendant to be dangerous to the public peace or safety.” During treatment, the defendant may not be released on furlough or on parole. At the successful conclusion of treatment, the defendant must serve the remainder of her sentence.
This disposition for persons found guilty but mentally ill differs from the disposition for persons found not guilty by reason of insanity. Defendants found not guilty by reason of insanity may be released immediately if they prove to the court by clear and convincing evidence that they are “not presently suffering from any mental illness that causes [them] to be dangerous to the public.” Until that time, they are committed to the Commissioner of Health and Social Services for treatment for a period not to exceed the maximum term of imprisonment for the crime for which they were found not guilty by reason of insanity. They are entitled to yearly hearings where they have the opportunity to establish that they are “not presently suffering from any mental illness that causes [them] to be dangerous to the public.” If they are still in custody at the end of the maximum term of imprisonment for the crime for which they were found not guilty by reason of insanity, the State can file a petition for civil commitment.
Factual and procedural background
Judge Volland issued a written verdict in this case. The following facts are from that verdict:
Cynthia Lord is gravely disabled by mental illness. She suffers from schizoaffective disorder, depressive type. This disorder is characterized by delusions, hallucinations, disordered thought process and disturbed emotional experience. Ms. Lord has been in and out of psychiatric hospitals since age 17, and had been receiving mental health services in Anchorage regularly since 1994. Her condition is not likely to improve although medication may reduce her hallucinations. Since at least 2003, Ms. Lord has had delusions about a force she calls “Evil,” delusions about being watched by police and the CIA, and about Satanic labels on food. Although suffering from delusions part of the time, Ms. Lord has been able to secure employment in the past, attend school at Wayland Baptist University, take care of her children, and undertake daily life care responsibilities such as shopping, cooking, housecleaning, etc.
On March 16, 2004, the Anchorage Police Department received a 911 call from Ms. Lord reporting that she had “killed my three boys.” APD had had experiences with Ms. Lord before, and the police response was initially skeptical about her report. However, when officers entered her home, they found the bodies of Ms. Lord’s three children: Joseph, age 16, Michael, age 18, and Christopher, age 19. Each boy had been killed by a single shot to the head.
Ms. Lord gave a voluntary statement to police that day. She told APD Detectives Mark Huelskoetter and Glen Klinkhart that she had purchased a gun in October 2003, when she made the decision to kill her sons. Ms. Lord said that on the day before [she killed her sons] she mixed some of her medication with Crystal Light so that her boys would drink it and get sleepy. She set her alarm for early in the morning and woke at approximately 2:30 a.m. It took her about an hour to work up the courage to kill Michael, her eighteen year old, during which time she drank alcohol. She first worried that the gunshot would wake the other boys or her neighbors. She then covered Michael’s body with a blanket and waited for her other sons to wake up.
Ms. Lord told police that when Joseph, the youngest, woke up she told him that Michael was sick and would not be going to school. Joseph then left to attend classes at East High. When Christopher woke up around 10:00 a.m., she waited until he was playing video games in front of the entertainment center. She then shot him in the head, pulled his body into another room, and covered it with clothes so that Joseph would not see it when he came home. Christopher had asked about Michael, but Ms. Lord told him that Michael was sick as she had told Joseph. She then locked the door so “that when Joey came home … I would be ready with the gun.” When Joseph returned from school at around 2:30 p.m. and walked in the door, Ms. Lord waited until Joseph’s face was turned away from her and shot him in the back of the head. She then contemplated killing herself for a couple of hours and eventually called the police around 4:30 p.m. Ms. Lord told detectives she expected punishment for what she did.
Several psychologists testified at the trial. Judge Volland summarized their testimony:
Dr. [David] Sperbeck spent approximately eleven hours interviewing Ms. Lord, exclusive of psychological testing.
Dr. Sperbeck testified that Ms. Lord had good recall of events and described the shootings to him in greater detail than to police. He testified that Ms. Lord told him that she couldn’t tell what was real or not and that she didn’t want her children to grow up in a world of deception and lies. Ms. Lord told Dr. Sperbeck that she knew the boys were her children but that they acted like robots. Dr. Sperbeck testified that, despite the fact that Ms. Lord’s actions were prompted by her hallucinations, she clearly knew that she was killing her children.
He testified that his opinion was that “Lord understood the nature and quality of her conduct” in that she “under[stood] the consequences of [her] act[s].” She “understood that placing a gun to the head of her children would kill them.” Dr. Sperbeck was confident from Lord’s repeated statements to him that she knew she was killing her boys. Judge Volland found that Dr. Lawrence Maile testified similarly to Dr. Sperbeck:
Based on Ms. Lord’s systematic planning to kill her sons, her ability to identify her sons, distinguish them as human beings, and describe the consequences of her direct actions on her sons, Dr. Maile expressed the professional opinion that there [were] no impediments to Ms. Lord being found criminally responsible for the charges she faces.
Dr. Bruce Gage testified for the defense. Judge Volland summarized his testimony as follows:
Dr. Gage concluded that Ms. Lord did “understand that she was killing her boys so, to that extent, she understood the nature of her act.” However, Dr. Gage was of the opinion that this did not take into account Ms. Lord’s reason for killing her children, i.e., to save them. Dr. Gage was of the opinion that if this motivation and context for her act is considered, Ms. Lord did not understand the nature and quality of her conduct. Dr. Gage opined that if Ms. Lord believed she was saving her children, she did not appreciate the quality of her act because she did not appreciate its true consequences.
Cynthia Lord testified at the trial. Judge Volland summarized her testimony as follows:
During her testimony, [Ms. Lord] spoke with the same flat affect that was characteristic of her interview with police, and apparently characteristic of her discussions with mental health professionals for the last decade. She described her delusions at length. Ms. Lord retold the killing of her children with the same detail she gave to police. On cross-examination, Ms. Lord admitted that she knew she was pointing a gun at Michael and that when she shot the gun it would kill him. She stated that had her daughter been in the home at the time, she would have killed her also “because she’s one of the siblings.” Ms. Lord testified that she knew Michael was dead after she shot him. She also admitted that after killing Joseph, she thought: “Oh my god, I killed my son.” Regarding Christopher, she admitted on cross-examination that “I got the gun and I shot him in the head” and that she had told [another examining doctor] that she shot him in the back of the head because she did not want the last thing he saw to be his mother shooting him. As to Joseph, she said “I shot him.” She acknowledged that when she shot her boys, she intended to pull the trigger and knew that a bullet would go into their heads and they would die. She admitted they were her boys and that they were human. She said she thought about killing herself “because she couldn’t live without them.”
In reaching his verdict, Judge Volland first addressed whether Lord had the mens rea for murder in the first degree. [Under the diminished capacity doctrine,] a defendant is not guilty by reason of insanity if, “as a result of mental disease or defect, there is a reasonable doubt as to the existence of a culpable mental state that is an element of the crime.”
To establish the mens rea for murder in the first degree, the State had to prove beyond a reasonable doubt that Lord intended to cause the death of Michael, Joseph, and Christopher. Alaska law states that a person acts intentionally “when the person’s conscious objective is to cause that result; when intentionally causing a particular result is an element of an offense, that intent need not be the person’s only objective.”
Judge Volland found that “the evidence is overwhelming that Ms. Lord engaged in a deliberate, conscious, and detailed plan to kill her three sons.” He then set out Lord’s meticulous planning that preceded the murders, and noted the opinions of the psychologists who testified at trial that Lord intended to kill her sons:
According to Dr. Sperbeck and Dr. Maile, Ms. Lord knew her sons were her sons at the time of the shootings. Even Dr. Gage stated in his written report that Lord knew she was killing her sons. Dr. Gage also acknowledged that Ms. Lord had to have the intent to kill her sons to also have the intent to save them.
After finding that Lord had the mens rea to commit murder in the first degree, Judge Volland examined whether Lord had established the affirmative defense of insanity. Under AS 12.47.010(a), a defendant is not guilty by reason of insanity if the defendant establishes by a preponderance of the evidence that, when engaged in the criminal conduct, the defendant was “unable, as a result of mental disease or defect, to appreciate the nature and quality of that conduct.”
Judge Volland first discussed … the meaning of AS 12.47.010(a)—in particular, the meaning of “unable, as a result of mental disease or defect, to appreciate the nature and quality of that conduct.” The court observed that the legislative history of the statute contained two examples of defendants who could establish that they were unable to appreciate the nature and quality of their acts under this standard: a defendant who is “unable to realize that he is shooting someone with a gun when he pulls the trigger on what he believes to be a water pistol, or a murder defendant who believes he is attacking the ghost of [his] mother rather than a living human being.” According to the House Judiciary Committee report on the legislation, the defense of insanity would not apply “to a defendant who contends that he was instructed to kill by a hallucination, since the defendant would still realize the nature and quality of his act, even though he thought it might be justified by a supernatural being.”
Turning to the facts of this case, Judge Volland concluded:
[T]o appreciate the nature and quality of murder means that the defendant must have understood the act that he or she engages in will cause the death of another person. Thus, for Ms. Lord to prevail on the defense of insanity under AS 12.47.010(a), she must show, by a preponderance of the evidence, that she was unable, as a result of her mental illness, to recognize that pointing a gun at the head of her sons and pulling the trigger, knowing they were her sons, would kill them.
The court rejects Dr. Gage’s reasoning that understanding the “quality” of an act requires inquiry into the context of the act and the defendant’s motivation. In the court’s view this invites an inquiry into wrongfulness. This is especially true in Ms. Lord’s case. Ms. Lord’s motivation to save her children is precisely why she did not consider the act to be wrongful. Even Dr. Gage admitted that in Ms. Lord’s case, her motivation and belief that her act was not wrong “correspond.”
Judge Volland summarized why he concluded that Lord did not establish that she failed to appreciate the nature and quality of her conduct:
There is much evidence that Ms. Lord appreciated that she was killing her children. She stated the same to Dr. Sperbeck and Dr. Maile and admitted in her own testimony that after killing Michael, she recognized that she had just shot one of her children. Ms. Lord had to work up the courage to shoot Michael. She covered her children after she shot them so she would not see them. She shot her sons in the back of the head or while they were sleeping so they would not see their mother shoot them. She shot each boy in a way that would cause instant death and the least pain. [The court finds that these actions are not consistent with a mother shooting [children] she believes are non-human clones or robots. The evidence at trial that Ms. Lord did not believe her boys were her boys was equivocal at best. The court does not find that Ms. Lord’s statement to Dr. Sperbeck that “I was 80% sure I’d never see them again on this earth” evidenced that she did not believe she was killing them. Ms. Lord’s admissions on cross-examination convinced the court that she knew she was killing her boys.] Because of this, the court concludes that the defense has not established by a preponderance of the evidence that Ms. Lord failed to appreciate the nature and quality of her conduct as a result of her mental disease.
Judge Volland concluded, by a preponderance of the evidence, that Lord was guilty but mentally ill. He concluded that the “evidence is undisputed that Ms. Lord suffers from a severe, disabling mental illness,” and that she “killed her children to save them from ‘Evil’ and to send them to heaven. She believed that she was doing the right thing and would do it over again; she testified to this belief at trial. The court finds her belief genuine and firmly held.”
Why we uphold Judge Volland’s verdict that Lord was guilty but mentally ill
Lord argues that Judge Volland interpreted the Alaska statutes setting out the defense of insanity too narrowly. She argues that, in arriving at his verdict, Judge Volland only applied … the diminished capacity statute, which provides that a defendant is not guilty by reason of insanity if, “as a result of mental disease or defect, there is a reasonable doubt as to the existence of a culpable mental state that is an element of the crime.” Lord argues that the defense of insanity is broader, because AS 12.47.010(a) also establishes an affirmative defense of not guilty by reason of insanity if the defendant engaged in criminal conduct but “was unable, as a result of mental disease or defect, to appreciate the nature and quality of that conduct.”
In rejecting Lord’s insanity defense, Judge Volland found that, even though the “evidence [was] undisputed that Ms. Lord suffers from a severe, disabling mental illness,” Lord formed the culpable mental state to commit murder in the first degree. He found that “the evidence is overwhelming that Ms. Lord engaged in a deliberate, conscious, and detailed plan to kill her three sons.”
Lord agrees that this finding was sufficient for Judge Volland to reject a “diminished capacity” defense[.] But she asserts that Judge Volland erred by using these same findings to reject her affirmative defense of not guilty by reason of insanity under AS 12.47.010. Lord argues that if the legislature intended to restrict the insanity defense to only an inquiry about whether a defendant could form the mens rea to commit the crime, then AS 12.47.010 would be superfluous. She argues that the legislative history of the statutes governing the insanity defense show no intent to limit the defense in this way.
Lord argues that, applying the proper test in AS 12.47.010(a), the evidence at trial established the affirmative defense of insanity because it showed that she had no understanding of the meaning of death, and therefore did not appreciate the nature and quality of her acts. But Judge Volland rejected the factual basis for this argument. He found that Lord knew she was killing her boys and appreciated the nature of death based on her testimony that she “was 80% sure I would never see them again on this earth.”
In explaining his verdict, Judge Volland carefully considered the testimony of the psychologists as well as the evidence of Lord’s hallucinations and delusions. He concluded that, in spite of these mental defects, Lord understood the nature and quality of her acts. He set out her meticulous reasoning and the steps she took as she planned and carried out the killing of her sons. He concluded that she understood what she was doing and understood the concept of death—she knew with substantial certainty that, by killing her sons, she was removing them from this earth and that she would never see them alive again. We conclude that there is no merit to Lord’s claim that Judge Volland failed to make the findings necessary to reject her affirmative defense of insanity.
To find that Lord was guilty but mentally ill, Judge Volland had to find that she lacked “the substantial capacity either to appreciate the wrongfulness of [her] conduct or to conform that conduct to the requirements of the law.” Judge Volland concluded that, because of her mental illness, Lord sincerely believed she was doing the right thing by killing her sons “to save them from ‘Evil’ and send them to heaven.” He found that, because of her mental disease or defect, she lacked the substantial capacity to appreciate the wrongfulness of her conduct. Judge Volland’s findings are supported by the record, and they support his verdict that Lord was guilty but mentally ill.
[…]
Conclusion
The judgment of the superior court is AFFIRMED.
Diminished Capacity
Diminished capacity differs from legal insanity. Whereas insanity absolves a defendant from criminal responsibility for the charged crime, the diminished capacity doctrine only acts to negate specific intent crimes. Diminished capacity allows a defendant to argue that his mental disease or defense precluded him from forming the requisite culpable mental state. AS 12.47.020(a). “The diminished capacity doctrine is based on the theory that while an accused may not have been suffering from a mental disease or defect at the time of his offense, sufficient to absolve him totally of criminal responsibility, the accused’s mental capacity may have diminished by intoxication, trauma, or mental disease to such extent that he did not possess the specific mental state or intent essential to the particular offense.” See Johnson v. State, 511 P.2dd 118, 124 (Alaska 1973). Diminished capacity is a rarely used defense.
Figure 8.5 – Effects of Mental Illness Claims (circular diagram)
Exercise
Answer the following question. Check your answers using the answer key at the end of the chapter.
1. Jeffrey is diagnosed with schizophrenia. For fifteen years, Jeffrey kidnaps, tortures, kills, and eats human victims. Jeffrey avoids detection by hiding his victims’ corpses in various locations throughout the city. If the jurisdiction in which Jeffrey commits these crimes recognizes the M’Naghten insanity defense, can Jeffrey successfully plead and prove insanity? Why or why not? Would your answer change under Alaska’s insanity law? | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/08%3A_Criminal_Defenses_(Excuse)/8.01%3A_Competency_and_Insanity.txt |
Infancy
At common law, infancy was a defense to crime. Infancy asserts that the defendant should not be subject to criminal prosecution because he or she is too young to appreciate the nature of “crime.” Legally, the infancy defense recognizes that certain juveniles are simply too immature to form the culpable mental state necessary to commit a crime. Morally, the infancy defense recognizes that juveniles are simply too immature to be punished for a crime.
The common law recognized three age-based categories of increasing criminal responsibility. If an offender was under the age of seven years old, the offender lacked the capacity to form the requisite culpable mental state. The minor could not be criminally prosecuted. If a minor was between seven and fourteen years old, there was a rebuttable presumption that the offender lacked the necessary capacity. The court presumed that the offender lacked capacity, but the government could rebut the presumption with sufficient evidence. Finally, common law held that all offenders over fourteen years old could form the necessary mental state.
All modern American jurisdictions have moved away from the graded presumptions surrounding infancy and instead created juvenile justice systems. All juvenile justice systems include a mechanism to allow the most serious juvenile offenders to be prosecuted in adult court. Alaska is no different.
Juvenile Justice System
In 1899, the Illinois Juvenile Court Act created the first juvenile court. The new juvenile court introduced a special adjudicatory proceeding for delinquent youths, separate from adult court. Several states soon followed suit. The idea behind juvenile courts was to concentrate on the rehabilitative potential of minors, emphasizing an informal court structure. Under this model, juveniles were not viewed as criminals, but as troubled youths in need of supervision. A juvenile offender was never convicted of a crime; instead, the youth was adjudicated a delinquent in need of rehabilitation.
During the 1950s and 1960s, scholars began to question how juveniles were being treated in juvenile justice systems across the county. Although the philosophy of juvenile courts was still seen as benevolent, the scholars believed that significant arbitrariness existed within the various systems, raising constitutional concerns. Beginning in 1967, the US Supreme Court began providing juveniles with constitutional due process protections.
The seminal juvenile law case, In re Gault, 387 U.S. 1 (1987), involved a young boy who was arrested for making crank phone calls to his neighbor. Neither the boy, nor his parents, received notice of the charges, assistance of counsel, or an opportunity to cross-examine witnesses. After being adjudicated a delinquent youth, the trial judge ordered the young boy to Arizona Industrial School for an indeterminate period not to exceed six years. The maximum penalty for an adult convicted of the same offense was two months in jail or a fifty-dollar fine. Because of the inequality between youths and adults, the Court held that juveniles were entitled to adequate notice of charges, the assistance of counsel, the privilege from self-incrimination, and the right to confront witnesses during delinquency proceedings.
Since Gault, the US Supreme Court has repeatedly affirmed that juveniles have the right to avail themselves of basic constitutional protections. Today, juveniles are afforded nearly all of the same adult constitutional protections when facing delinquency charges.
Like all states, Alaska’s juvenile justice system is a creature of statute. See AS 47.12. et. seq. With various exceptions, all “minor[s] under 18 years of age” at the time of a criminal offense are handled within the juvenile justice system. AS 47.12.020. The primary purpose of the juvenile system is rehabilitation, not punishment. Juveniles are not “convicted” of crime, but instead are determined to be “delinquent.” Delinquent minors are committed to the care of the Department of Health and Social Services, not the Department of Corrections. The Alaska Criminal Rules do not apply to juvenile proceedings. Juvenile matters are governed by the delinquency rules. See Alaska Delinquency Rules 1(b).
Yet, Alaska’s juvenile justice system, like most states, has significant exclusions. Certain minors, who commit certain offenses, are excluded from the juvenile system as a matter of law. In Alaska, this includes most serious felony crimes if the juvenile was 16 or 17 at the time of the offense. Thus, a 16-year-old accused of murder must be prosecuted in adult court, not juvenile court. This is commonly referred to as automatic waiver. The term is largely a misnomer in Alaska. The juvenile is never “waived” to adult court; instead, the juvenile justice system never had jurisdiction. Older juveniles (16- or 17-year-olds) who commit serious offenses are excluded from the juvenile system’s jurisdiction. Likewise, most misdemeanor traffic, wildlife, and tobacco criminal violations are handled in adult court. Although juveniles have significant constitutional protections within the juvenile system, juveniles have no constitutional right to a juvenile justice system. The Alaska legislature is free to determine which minors are prosecuted in adult court, and which minors are adjudicated in juvenile court. See e.g., Watson v. State, 487 P.3d 568 (Alaska 2021).
A small class of minors are subject to discretionary waiver – that is, minors who commit serious offenses and are “not amenable to treatment” in the juvenile system. These minors may be waived (e.g., transferred) to the adult court system at the discretion of the court. AS 47.12.100. Generally, the burden is on the government to demonstrate that the minor is not amenable to treatment within the juvenile system. However, if the minor is accused of a serious felony offense, the minor must demonstrate that he or she should not be waived. Several factors inform the court’s decision, including the nature of the offense, the sophistication it requires, the minor’s criminal history, and the threat the minor poses to public safety.
Example of the Juvenile Justice System
Robbie is fourteen years old. Robbie shoplifts a “hacky sack” to impress his friends. An off-duty police officer sees Robbie steal the Hacky Sack and arrests him when he walks out of the store. Robbie committed the crime of fourth-degree theft. Although the Anchorage District Attorney wants to make an example of Robbie, Alaska statute specifies that the juvenile justice system has jurisdiction over Robbie’s delinquent conduct. The Anchorage District Attorney would need to persuade the trial court that Robbie was not amenable to treatment within the juvenile system before Robbie could be prosecuted in adult court.
Intoxication
Intoxication is a defense that focuses on a defendant’s inability to form the requisite culpable mental state. Intoxication can be based on the defendant’s ingestion of alcohol or drugs, and it can be voluntary or involuntary.
Voluntary intoxication is generally not a defense. Conduct that occurs after the voluntary intoxication is not excused unless the intoxication prevented the defendant from forming the culpable mental state intentionally. When evaluating the culpable mental states of “knowingly,” “recklessly,” and “criminal negligence,” the jury is instructed to assume the defendant was sober. AS 11.81.900(a).
Figure 8.6 – Alaska Statute 11.81.630
Involuntary Intoxication, on the other hand, may be treated as a defense, but recall, it may be analyzed under the voluntary act element requirement of crime. See Wagner v. State, 390 P.3d 1179 (Alaska App. 2012). Involuntary intoxication can occur if the defendant injected a drug or alcohol unknowingly or under force, duress, or fraud.
Ignorance and Mistake
Occasionally, a defendant asserts that he did not know his conduct was criminal. Ignorance of the law is not a defense. AS 11.81.620.
Mistake of law is slightly different. While ignorance is no defense, under a mistake of law defense, the defendant affirmatively asserts that they reasonably believed their criminal conduct was legal. A mistake of law is normally not a defense except in the limited situation where a person acts in reasonable reliance on an official pronouncement (or interpretation) of the law issued by the chief enforcement officer entrusted with the law’s enforcement. See Stoner v. State, 421 P.3d 108 (Alaska App. 2018). Under the mistake of law defense, a defendant is entitled to rely on a judicial officer’s interpretation of a law, but not a police officer’s interpretation. “The policy behind this rule is to encourage people to learn and know the law; a contrary rule would reward intentional ignorance of the law.” See Ostrosky v. State, 704 P.2d 786, 791 (Alaska App. 1985). Mistake of law is an affirmative defense that must be proven by a preponderance of the evidence.
Valid Example of Mistake of Law Defense
Jim is a commercial fisherman working out of Bristol Bay. The Board of Fisheries sets the Bristol Bay sockeye salmon run to be open from June 1 until June 15. On the day of the sockeye salmon opener, the Department of Fish and Game (DFG) issues a proclamation extending the fishery by 48 hours; the fishery will close on June 17, not June 15. Jim works the entire fishery, including the extra two days. Shortly after the fishery closes, the Dillingham Superior Court Judge issues an order finding that DFG usurped the authority of the Board of Fisheries to extend the fishery. An Alaska Wildlife Trooper cites Jim for fishing in closed waters. Under this scenario, Jim would be entitled to rely on a mistake of law defense against the prosecution. Jim could reasonably rely on DFG’s announcement as they are an entity that is entrusted with the enforcement of fish and game rules and regulations.
Invalid Example of Mistake of Law Defense
Susan is on felony probation for check forgery. Susan lives alone and fears for her safety. Susan asks her felony probation officer if she can get a shotgun for home protection. Her probation officer tells her that the restriction on felons owning firearms does not apply to possession of guns in one’s own home if necessary for self-defense. (As you know, this was a legally incorrect statement.) Susan, relying on her probation officer’s advice, buys a shotgun for her home. Police execute a search warrant on Susan’s house (directed at her roommate), and during the subsequent search, police find the shotgun. Susan admits to owning the gun, but claims her probation officer told her it was okay. As harsh as it may seem, Susan does not have a valid mistake of law defense to a felon-in-possession charge. Susan is not entitled to rely on her probation officer’s advice. The probation officer’s opinion as to what the law is does not excuse Susan’s criminal conduct.
Mistake of fact may also be a defense. If a reasonable factual mistake negates the culpable mental state required for the commission of the offense, then the defendant is not criminally responsible. Thus, a person who accidentally picks up another person’s jacket, mistakenly believing it is his own, has not acted with the specific intent to steal – that is, the person has not acted with the requisite culpable mental state. Importantly, a mistake of fact may only operate as a defense when it is a reasonable mistake. An honest, but unreasonable mistake will not absolve a defendant of criminal responsibility. AS 11.81.620(b). A mistake of fact is generally not a defense to strict liability crimes since strict liability crimes have no requisite culpable mental state (mental state is not an essential element of strict liability crimes). See Clucas v. State, 815 P.2d 384, 388 (Alaska App. 1991).
Example of Invalid Mistake of Fact Defense
Tina is pulled over for speeding. Tina claims her speedometer is broken, so she was mistaken as to her speed. Tina probably cannot assert the mistake of fact as a defense in this case. Speeding is generally a strict liability offense; it has no culpable mental state. Tina’s mistaken belief as to the facts of her speed is not relevant because there is no intent required for this offense. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/08%3A_Criminal_Defenses_(Excuse)/8.02%3A_Infancy_Intoxication_Ignorance_and_Mistake.txt |
Certain criminal behavior is particularly difficult to investigate. Drug-trafficking, prostitution, and other organized crimes occur privately, between willing participants. To detect, investigate, and disrupt such criminal behavior, police must be proactive. In some circumstances, police use encouragement to ferret out crime. The defense of entrapment addresses situations where the government’s conduct inappropriately induces criminal behavior. At its core, the entrapment defense is based on the government’s use of inappropriately persuasive tactics when investigating and apprehending criminals. Entrapment is a perfect affirmative defense.
Entrapment focuses on the origin of criminal intent. If the criminal intent originates with the government or law enforcement, the defendant can claim they were entrapped and can assert the defense. If the criminal intent originates with the defendant, then the defendant is acting independently and may not assert the defense. Two tests of entrapment have emerged: subjective entrapment and objective entrapment. Alaska has adopted an objective test of entrapment, but to properly understand the scope of the defense, it is important to understand both tests.
Subjective Entrapment
Subjective entrapment occurs when law enforcement pressures the defendant to commit the crime against his or her will. The subjective entrapment test focuses on the defendant’s individual motivations and characteristics, and not necessarily on law enforcement’s behavior. If the facts indicate that the defendant is predisposed to commit the crime without law enforcement pressure, the defendant cannot claim entrapment.
The defendant’s criminal record is admissible if relevant to prove the defendant’s criminal nature and predisposition. Generally, law enforcement can furnish criminal opportunities and use decoys and feigned accomplices without crossing the line into subjective entrapment. However, if it is clear that the requisite intent for the offense originated with law enforcement, not the defendant, the defendant can assert subjective entrapment as a defense.
Example of Subjective Entrapment
Sally regularly attends Narcotics Anonymous (NA) for her heroin addiction. All the NA attendees know that Sally is a dedicated member who has been clean for ten years. Sally regularly leads the meeting if needed.
Marcus, a law enforcement decoy, meets Sally at the end of one meeting and begs her to “hook him up” with some heroin. Sally refuses. Marcus attends the next meeting, and follows Sally out to her car pleading with her to get him some heroin. After listening to Marcus explain his physical symptoms of withdrawal in detail, Sally feels pity and promises to help Marcus out. She agrees to meet Marcus in two hours with a small amount of heroin. When Sally and Marcus meet up, Marcus arrests Sally for drug trafficking. Sally may be able to assert entrapment as a defense under the subjective entrapment test. Sally has not used drugs for ten years, did not initiate contact with law enforcement, and initially refused Marcus’ request. It is unlikely that the intent to sell heroin originated with Sally. She has been a dedicated member of NA, and she actually met Marcus at an NA meeting while trying to maintain her sobriety. It appears that Marcus pressured Sally to sell heroin against her natural predisposition, and the entrapment defense may excuse her conduct.
Objective Entrapment
The subjective entrapment test has faced significant criticism, as it is based on hypotheticals and “theoretical riddles.” Grossman v. State, 457 P.2d 226, 229 (Alaska 1969). Further, the subjective test focuses on a defendant’s criminal history and predisposition to commit crimes, thereby likely prejudicing the jury against the defendant for their past conduct.
Instead of focusing on a defendant’s predisposition, the objective entrapment test focuses on the police conduct used to induce criminal behavior. If law enforcement uses tactics that are unreasonable or unconscionable to induce a law-abiding person to commit the crime, the defendant may be able to rely on the defense of entrapment. The objective entrapment defense focuses on conduct that falls below “fair and honorable” police tactics. The question of whether the government’s conduct was fair and honorable is a question of law for the court to decide, not a question of fact for the jury.
Figure 8.7 – Alaska Statute 11.81.450
Example of Objective Entrapment
Sam has a lengthy criminal record for prostitution. An undercover police officer offers Sam \$100,000 to engage in sexual intercourse. Sam promptly accepts. Sam likely has a viable entrapment defense to the criminal charge of prostitution. A reasonable, law-abiding person could be tempted into committing prostitution for \$100,000. The objective test focuses on police tactics, rather than the defendant’s criminal predisposition. Sam’s lengthy criminal record is irrelevant in determining whether law enforcement used an excessive inducement.
State v. Yi, 85 P.3d 469 (Alaska App. 2004)
In the following case, pay attention to how the court applies the objective test to the facts of the case. Was Yi a “ready and willing” participant in the criminal transaction?
85 P.3d 469
Court of Appeals of Alaska.
STATE of Alaska, Petitioner,
v.
Jung Ho YI, Respondent.
No. A–8430.
Feb. 20, 2004.
OPINION
COATS, Chief Judge.
It is a misdemeanor offense to purchase, sell, or barter bear parts. Bethel, Alaska, is a “damp” community where it is legal to possess alcohol for one’s personal use, but it is a felony offense to buy, sell, or trade alcohol. The defendant in this case, Jung Ho Yi, traded two bottles of Crown Royal Whiskey for a bear gallbladder which was offered by undercover Alaska State Trooper Gary Pacolt. Approximately three weeks later, Yi engaged in another similar transaction with Trooper Pacolt. When the State charged Yi with these criminal offenses, Yi defended on the ground of entrapment. Yi contended that, although he knew that selling of gallbladders or whiskey was illegal, he reasonably believed, based in part on Trooper Pacolt’s representations, that a trade (or exchange of gifts) was lawful. Superior Court Judge Dale O. Curda found that Yi established the defense of entrapment. The State petitioned for review and we granted the petition. We now reverse Judge Curda’s ruling.
Factual and procedural background
During January of 2002, Trooper Pacolt was assigned to spend three days in Bethel as part of an undercover operation to apprehend persons engaged in illegal buying and selling of bear gallbladders. The operation was set up in response to information, reported by the Alaska Department of Fish and Wildlife, that at least one restaurant in town had bought or bartered bear gallbladders in violation of the law. During this operation Trooper Pacolt attempted to sell or barter a bear gallbladder in at least six different restaurants in Bethel.
On January 18, Trooper Pacolt and Officer Betty Williams, from the Quinhagak Police Department, entered the Front Street Cafe dressed as civilians. This restaurant was the first that they selected. The two officers were the only patrons in the restaurant at the time. The two officers ordered dinner. Trooper Pacolt then noticed a man, later identified as Yi, who sat down to eat at a nearby table. Yi appeared to be an employee of the restaurant as he frequently went back into the kitchen.
Trooper Pacolt then engaged Yi in some small talk for about five or ten minutes. Most of the conversation revolved around the fact that both men were from Anchorage. At this point Trooper Pacolt removed a bear gallbladder from his shirt pocket and asked Yi if he was interested in buying. Yi responded that he did not want to buy it and that it was illegal. Trooper Pacolt said “no problem,” and put the gallbladder back in his pocket. Trooper Pacolt then asked Yi if he knew where he could get some alcohol.
It is only at this point that Trooper Pacolt’s and Yi’s testimonies differ. According to Trooper Pacolt, Yi then asked to see the gallbladder again. And, after Pacolt handed it to him, Yi asked Pacolt if he was interested in trading the gallbladder for some alcohol. Trooper Pacolt replied that a trade would “be fine.” Trooper Pacolt testified that he never indicated to Yi that such a trade was legal. According to Yi, after Pacolt asked where to get alcohol, he only told Pacolt that he had some for his own personal use. Yi testified that Trooper Pacolt first brought up the idea of trading alcohol for the gallbladder. Yi admitted to readily agreeing to this transaction, which he characterized as a gift exchange. Yi also testified that he got the impression from Trooper Pacolt that such an exchange would be legal. Yi does not claim that he knew Trooper Pacolt was a police officer at that time. Officer Williams also testified but her testimony was not helpful in clearing up these conflicting accounts.
From this point on, the facts are uncontested. Yi had an employee of the cafe bring Trooper Pacolt a paper bag containing two bottles of Crown Royal whiskey. Yi then proceeded to staple the bag shut. Yi also said that he would pay for Trooper Pacolt’s dinner as part of the deal.
Before Trooper Pacolt left the cafe, he told Yi that he might have more gallbladders in the future and asked if Yi might be interested. Yi said no, but stated that he might know some people who would be.
On February 12, Trooper Pacolt returned to the Front Street Cafe alone, this time wearing a tape-recording device. […] Trooper Pacolt had another bear gallbladder with him at this time. Pacolt sat down to have dinner. Yi came out, talked with him, and took his order. Trooper Pacolt then told Yi that he had another gallbladder and showed it to him. He then asked Yi if he was interested in trading again “like last time.” Yi indicated that he was interested, this time trading three bottles of vodka for the gallbladder. Yi again paid for Trooper Pacolt’s dinner.
The State indicted Yi on two felony counts of sale of liquor without a license and charged him by information with two misdemeanor counts for purchasing parts of a big game animal.
Yi filed a motion to dismiss the indictment on the ground that he had been entrapped by the police. […] Following the hearing, Judge Curda ruled that Yi had established the defense of entrapment.
[…]
The law of entrapment
Alaska’s entrapment statute is codified at AS 11.81.450:
In any prosecution for an offense, it is an affirmative defense that, in order to obtain evidence of the commission of an offense, a public law enforcement official or a person working in cooperation with the official induced the defendant to commit the offense by persuasion or inducement as would be effective to persuade an average person, other than one who is ready and willing, to commit the offense. Inducement or persuasion which would induce only a person engaged in an habitual course of unlawful conduct for gain or profit does not constitute entrapment.
Entrapment is a defense to criminal charges, and the purpose of the defense is to deter law enforcement activities that go beyond the bounds of sound public policy. Because AS 11.81.450 defines entrapment as an affirmative defense, a defendant bears the burden of establishing it by a preponderance of the evidence. Entrapment is an issue for the court to decide rather than the jury. Alaska employs an objective test for entrapment. This means that “the court considers the nature of the police activity involved, without reference to the predisposition of the defendant.”
We have previously stated:
In order to prevail on [an entrapment] defense, [the defendant is] required to prove that the police employed fundamentally unfair or dishonorable practices calculated to induce someone to commit the crime in question so that he might be arrested and prosecuted for the offense…. And while [the defendant does] not need to negate a predisposition to engage in similar conduct, [the defendant must show] that the dishonorable police practices were a substantial factor in inducing him to commit the charged offenses—that his commission of the offenses was “the direct result of inducement by law enforcement officials.” [internal citations omitted]
We conclude that Judge Curda erred in concluding that Yi established the defense of entrapment. […] Looking objectively at Trooper Pacolt’s conduct, the evidence does not show that the trooper engaged in fundamentally unfair or dishonorable practices which were calculated to induce someone to commit a crime, other than a person who was willing. […] Even if Trooper Pacolt had suggested the exchange and even if he had suggested that it would be lawful to trade the alcohol for the bear gallbladder, it would be unreasonable for Yi to rely on this representation. As Yi admitted, he had no suspicion that Trooper Pacolt was a police officer or was anyone other than an ordinary visitor to Bethel.
[…]
[W]e conclude that Judge Curda’s finding that Yi was entrapped was an abuse of discretion. We accordingly reverse Judge Curda’s ruling that Yi established the defense of entrapment.
REVERSED. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/08%3A_Criminal_Defenses_(Excuse)/8.03%3A_Entrapment.txt |
Summary
Mental illness plays a significant role in the criminal justice system and can impact criminal prosecutions in numerous ways. All defendants have a constitutional right to be mentally competent during all criminal proceedings. Competency requires the defendant to understand the nature of the proceedings against him and be able to participate in his own defense. Competency is viewed at the time of the court proceedings and is fluid. Competency is not a defense to criminal conduct; it is a constitutional right. If a person is incompetent, they are committed to a mental institution until their competence is “restored.” When a criminal defendant is incompetent and non-restorable, the criminal prosecution is dismissed without prejudice, meaning that the prosecution can re-file criminal charges once the defendant regains competency.
Insanity is a defense to criminal behavior and is static. Insanity is measured at the time the defendant engaged in the criminal act. The federal government and every state except Montana, Utah, Kansas, and Idaho recognize the insanity defense. The policy supporting the insanity defense is the lack of control a defendant has over their conduct; punishing the legally insane has no deterrent effect.
Four insanity defenses are recognized in the United States: M’Naghten, irresistible impulse, substantial capacity, and Durham. The M’Naghten rule is cognitive and excuses criminal conduct when the defendant is suffering from a mental defect or disease that prevents the defendant from knowing the nature or quality of conduct or from knowing that the conduct is wrong. The irresistible impulse test adds a volitional component and excuses conduct the defendant cannot control because of a mental defect or disease. The substantial capacity test (also known as the Model Penal Code test) softens the requirements to substantial, rather than total, capacity to appreciate the criminality of conduct or to conform conduct to the law. Finally, the Durham rule is currently recognized only in New Hampshire, and excuses conduct that is the product of a mental disease or defect.
In Alaska, a person is not guilty by reason of insanity if the person, as a result of a mental disease or defect, in unable to appreciate the nature and quality of their criminal act. This is the first prong of the M’Naghten rule. Alaska has also adopted a guilty but mentally ill (GBMI) verdict which occurs when, as a result of a mental disease or defect, the person lacks the substantial capacity to appreciate the wrongfulness of their conduct or they are unable to conform their conduct to the law. Alaska GMBI verdict is punitive as it precludes a mentally ill defendant from being released on parole if still suffering from a mental illness.
Insanity is a perfect affirmative defense. The defendant bears the burden of proving its existence. GMBI can be raised by either the defendant or the state. A verdict of “not guilty by reason of insanity” results in an acquittal for the offense. Although the defendant may be committed to a mental institution, the person is not criminally responsible for their conduct. A GBMI verdict requires the person to be committed to a mental institution for treatment of their mental illness, and then to prison to serve the remainder of their term of imprisonment.
Diminished capacity can operate as a defense, but only to specific intent crimes. A person may claim diminished capacity if, because of a mental disease or defect, they were unable to form the requisite mental state of intentionally.
The infancy defense existed at common law and excused conduct when the defendant was too young to form the culpable mental state for the offense. Codified juvenile justice systems have supplanted the infancy defense. The majority of juveniles who commit criminal acts are adjudicated within the juvenile system and not the adult system. Juveniles have nearly all of the procedural rights that are available to adults. Juveniles are not convicted of crimes, but are adjudicated delinquent. For the most serious crimes, or the most dangerous juvenile offenders, the government can seek a discretionary waiver to have the case prosecuted in adult criminal court. The government must prove that the minor is not amenable to treatment to be successful in a discretionary waiver. The criteria for such decisions generally include the nature of the offense, the sophistication it requires, the defendant’s prior criminal history, and the threat the defendant poses to public safety. Certain crimes – namely serious felonies committed by older minors – are automatically waived into the adult court.
The law also recognizes the excuse defenses of involuntary intoxication and mistake. Voluntary intoxication is not permitted as a defense, but may be relied upon to negate specific intent crimes. Involuntary intoxication, which is intoxication achieved unknowingly, under duress, or through fraud, is normally analyzed under the voluntary act element of the crime. Ignorance of the law is not a defense. Individuals are expected to know the laws of their jurisdiction. Mistake of law, which means the defendant does not know conduct is illegal, functions as a defense if the mistake is based on a official pronouncement by an authorized public official. Mistake of law is not a defense if the mistake is rooted in incorrect legal advice from an attorney or by a police officer. Mistake of fact is a defense if the facts as the defendant reasonably believes facts that negate the requisite intent.
Entrapment is also an excuse defense. While some jurisdictions recognize an subjective entrapment defense, which focuses on the defendant’s predisposition, Alaska has adopted the objective entrapment defense. The objective entrapment approach excuses conduct if the pressure by law enforcement would induce a reasonable, law-abiding person to commit the crime. The defendant’s predisposition (i.e., criminal record) is not relevant since the focus is on law enforcement tactics, not the defendant’s motivations.
Key Takeaways
• The four states that do not recognize the insanity defense are Montana, Utah, Kansas, and Idaho.
• The four versions of the insanity defense are M’Naghten, irresistible impulse, substantial capacity, and Durham.
• The two elements of the M’Naghten insanity defense are the following:
• The defendant must be suffering from a mental defect or disease at the time of the crime.
• The defendant did not know the nature or quality of the criminal act he or she committed or that the act was wrong because of the mental defect or disease.
• The two elements of the irresistible impulse insanity defense are the following:
• The defendant must be suffering from a mental defect or disease at the time of the crime.
• The defendant could not control his or her criminal conduct because of the mental defect or disease.
• The substantial capacity test softens the second element of the M’Naghten and irresistible impulse insanity defenses. Under the substantial capacity test, the defendant must lack substantial, not total, capacity to appreciate the criminality of conduct or to control or conform conduct to the law.
• The Durham insanity defense excuses criminal conduct when it is caused by a mental disease or defect.
• The criminal defendant pleading not guilty by reason of insanity must produce evidence to rebut the presumption that criminal defendants are sane.
• The insanity defense is generally a perfect affirmative defense.
• The diminished capacity defense that may be used to negate an intentional mental state.
• The insanity defense exonerates the defendant from criminal responsibility. Mental incompetence to stand trial delays the criminal trial until mental competency is regained.
• Infancy is a common law defense to an adult criminal prosecution if the defendant is too young to form the requisite criminal intent for the offense.
• The purpose of an adult criminal prosecution is punishment; the purpose of a juvenile adjudication is rehabilitation of the minor before he or she becomes an adult.
• Voluntary intoxication may provide a defense if the intoxication prevents the defendant from forming the requisite criminal intent for the offense.
• Involuntary intoxication may be a defense analyzed under the voluntary act element of a crime.
• Mistake of law may provide a defense if the defendant believes his or her conduct is legal because of reliance on an official pronouncement by an authorized individual or entity.
• Mistake of law is not a defense when the defendant believes his or her conduct is legal because of reliance on the incorrect advice of an attorney, police officer, or probation officer.
• If the facts as the defendant believes them to be prevent the defendant from forming the requisite intent for the crime, mistake of fact may be a valid defense.
• Mistake of fact is not a defense to strict liability crimes because intent is not an element.
• The subjective entrapment defense focuses on the individual defendant, and provides a defense if law enforcement pressures the defendant to commit the crime against his or her will. If the defendant is predisposed to commit the crime without this pressure, the defendant will not be successful with the defense. Pursuant to the subjective entrapment defense, the defendant’s criminal record is admissible to prove the defendant’s predisposition.
• The objective entrapment defense focuses on law enforcement behavior, and provides a defense if the tactics law enforcement uses would convince a reasonable, law-abiding person to commit the crime. Under the objective entrapment defense, the defendant’s criminal record is irrelevant and inadmissible. Alaska has adopted the objective entrapment excuse defense.
Answer to Exercises
From Culpability (Insanity)
1. Jeffrey will not be successful in a jurisdiction that recognizes the M’Naghten insanity defense. Although Jeffrey has a mental defect or disease, schizophrenia, Jeffrey’s behavior in hiding the victims’ corpses indicates that he knows his behavior is wrong. Thus, Jeffrey cannot produce evidence establishing the second element of M’Naghten. For the same reason, in Alaska, Jeffrey would not be successful in arguing insanity or guilty but mentally ill. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/08%3A_Criminal_Defenses_(Excuse)/8.04%3A_End-of-Chapter_Material.txt |
Not all homicides are created equal. In this chapter, we explore criminal homicide and its varying degrees of culpability. Murder, manslaughter, and criminally negligent homicide are all criminal homicides. All three require the same physical act – an unlawful killing of a human being. What separates the offenses is the mental state of the perpetrator.
At common law, murder was the unlawful killing of another with malice aforethought. Manslaughter, on the other hand, was the unlawful killing without malice. Modern criminal codes include criminally negligent homicide, which occurs when one’s lack of awareness of the risk of death is the direct and proximate cause of another’s unlawful death. We will explore how Alaska defines each degree of homicide shortly. Finally, suicide – where one kills oneself – is legal, whereas assisted suicide, including physician-assisted suicide, is generally illegal.
Homicide
Homicide is the killing of one human being by another. See Black’s Law Dictionary (6th ed. 1990). Not all homicide is unlawful. For example, capital punishment is homicide, but not criminal homicide. A homicide becomes criminal if it results from an unlawful killing – put another way, unlawful killings are killings that are not “justifiable” or “excusable.” This distinction has its roots in common law. At common law, homicide was classified as justifiable, excusable, or felonious. Justifiable homicides were not criminal because they were not committed with “an evil intent,” but instead, under circumstances of necessity or duty. Similarly, excusable homicides were not criminal since they were committed with minimal guilt. Felonious homicide is the wrongful killing of another without justification or excuse. Modern criminal codes have largely kept this distinction. Under Alaska’s criminal code, all unjustified forms of killing are deemed felonies. This includes both intentional and unintentional killings.
Actus Reus and Homicide
The actus reus of criminal homicide, depending on the jurisdiction, is the “unlawful killing of a person” or “causing the death of another person.” Two important, interrelated questions surround the actus reus: when does life begin and when does life end?
When life begins… when life ends …
The victim of homicide must be a living person. Thus, shooting a dead body is not homicide (but it may be a lesser crime). See e.g., AS 11.61.130(a). Alaska defines a “person” as a human being who has been born and was alive at the time of the criminal act. A person is “alive” if they have either spontaneous respiratory or cardiac function, or have spontaneous brain function, even though respiratory and cardiac function are maintained by artificial means. AS 11.41.140. In other words, Alaska has adopted the “brain death” test for determining death. Alaska has rejected the alternate test – proof of the irreversible cessation of circulatory and respiratory function – due to medical improvements. With advancements in medical science and technology, a person’s heartbeat and respiration may be maintained mechanically even if all brain function is irreversibly lost. To be “alive” a person must be born with spontaneous brain function. This definition necessarily excludes legal abortions.
Fetuses receive special protection under Alaska law. Alaska criminalizes the murder, manslaughter, or negligent homicide of an “unborn child.” AS 11.41.150-180. An “unborn child” is a fetus, at any stage of development, carried in the womb that is not born alive, but excludes legal abortions and other standardized medical procedures. AS 11.41.180; 11.81.900(b)(66). In some jurisdictions this is referred to as feticide. Feticide is the intentional destruction of a fetus.
Year-and-a-day rule
The now abolished common law determination of death was the year-and-a-day rule. The rule created a timeline for the victim’s death to constitute murder. The homicide victim needed to die within a year-and-a-day of the defendant’s act for the defendant to be criminally responsible. If the victim did not die within the time limit, the defendant could be charged with attempted murder, but not criminal homicide. All jurisdictions have now abolished the rule and have instead adopted traditional causation principles to determine death. See e.g., Tennessee v. Rogers, 992 S.W.2d 393 (Tenn. 1999). Death timeline rules should not be confused with the statute of limitations, which is the time limit the government has to prosecute a criminal defendant. (In Alaska, a criminal homicide prosecution may be commenced at any time; there is no statute of limitations.)
Suicide
At common law, suicide was a crime. Modern criminal codes do not criminalize suicide. However, numerous jurisdictions, including Alaska, criminalize assisting suicide. A person commits the crime of manslaughter if a person “intentionally aids another person to commit suicide.” AS 11.41.120(a)(2). The crime includes physician-assisted suicides; physicians receive no special protection under the criminal law. The Alaska Supreme Court has upheld the constitutionality of the criminal statute even in the face of terminally ill patients seeking to end their lives with the assistance of a physician. See Sampson v. State, 31 P.3d 88 (Alaska 2001). A minority of states (e.g., Oregon) allow terminally ill patients to seek the assistance of a physician to commit suicide.
In Sampson, the Alaska Supreme Court noted that physician-assisted suicide is not a fundamental right under the Alaska Constitution. Instead, the government has significant interests in prohibiting physician-assisted suicide, including preserving human life, protecting vulnerable persons, protecting the integrity of the medical profession, and regulating dangerous activities in the state. See id. Although a physician must honor a patient’s wish to stop life-saving measures, a physician may not intentionally quicken a person’s death.
Exercises
Answer the following question. Check your answer using the answer key at the end of the chapter.
1. What is the fundamental difference between homicide and suicide? | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/09%3A_Criminal_Homicide/9.01%3A_Homicide.txt |
Murder is the most serious classification of criminal homicide. At common law, murder was defined as the unlawful killing of a human being with “malice aforethought,” either expressed or implied. See Black’s Law Dictionary (6th ed. 2009). Although the term ‘malice aforethought’ has a long, and somewhat confused, history, it generally refers to an evil intent or depraved heart. Express malice existed when the defendant had a deliberate intention to take the victim’s life; implied malice was found when the defendant had a depraved heart or was indifferent to whether the victim lived or died. See e.g., Gray v. State, 463 P.2d 897 (Alaska 1970). Manslaughter, on the other hand, was defined as the unlawful killing without malice aforethought.
The Alaska criminal code classifies murder based on varying degrees, largely based on the defendant’s culpable mental state at the time of the killing. Generally, it is the mens rea that separates first-degree murder, second-degree murder, manslaughter, and criminally negligent homicide. One important exception is felony-murder, which will be discussed in the next chapter.
Figure 9.1 The Continuum of Homicide Mens Rea
First-Degree Murder
Murder in the first degree is the most serious criminal offense in Alaska. First-degree murder is an unclassified felony with a sentencing range of 30-99 years. AS 12.55.155. While there are multiple different ways to commit first-degree murder, the most frequent is intentional murder. The culpable mental state is intentionally, meaning the defendant must have a conscious objective to cause the victim’s death. AS 11.41.100(a)(1)(A). The statute lists five additional less common ways to commit first-degree murder, including forced suicide, or deaths resulting from repeated child abuse, child kidnapping, or domestic terrorism. See e.g., AS 11.41.100(a)(2)-(5).
Figure 9.2 Alaska Criminal Code – Murder in the First Degree
As noted, the most common theory of first-degree murder is intentional murder. Although the defendant must act with a specific intent to kill, the defendant’s intent to kill need not be deliberate or premeditated. Deliberate is normally defined as calm and methodical, without passion or anger. Premediated generally means reflection and planning. Neither is required under Alaska law. A defendant can form the intent to kill in an instant, without reflection, and with intense anger. If the defendant has a conscious objective to cause the victim’s death at the moment he committed the homicidal act, the defendant is guilty of first-degree murder. Although most criminal defendants do not announce their intention before committing a crime, a jury is entitled to presume that a defendant intends the natural and probable consequences of a criminal act he knowingly commits. See Kangas v. State, 463 P.3d 189 (Alaska App. 2020). Thus, a defendant who shoots a person in the chest at near point-blank range is likely to be found to have acted with an intent to cause death because a natural and probable consequence of shooting a person in the chest at point-blank range is death.
Example of Intentional Murder
Frank, Dillon’s supervisor, calls Dillon into his office and unexpectedly fires him. Enraged, Dillon stands up, grabs a heavy brass letter opener from the top of Frank’s desk, yells, “I hope you die!”, and plunges the letter opener into Frank’s chest. Frank stumbles and dies from a severed aorta. Dillon is likely guilty of first-degree murder. Dillon consciously picked up the letter opener and intentionally stabbed Frank in the chest. A severed artery is a natural and probable consequence of stabbing a person in the chest. In fact, Dillon verbalized his intent when he yelled, “I hope you die!” Note that Dillon acted in anger, not with calm, cool reflection. Further, the act of grabbing the letter opener appears impulsive, not planned. There is little evidence that indicates that Dillon has a strong or calculated desire to kill Frank before going into his office. Nonetheless, a jury could find that Dillion intentionally caused the death of Frank.
Transferred Intent
Occasionally, a defendant misses his intended target. Assume A deliberately shoots at B with the intent to kill B, but is a terrible shot, and hits C, killing her instantly. A had the specific intent to kill B, but accidentally killed C. Should A be guilty of first-degree murder (intentional murder), when A did not intend to kill C?
Under the common law doctrine of transferred intent, a criminal defendant’s “evil intent” is transferred from the intended target to the unintended victim.
In recent times, some jurists have noted the doctrine is an “unnecessary fallacy” since at common law, malice aforethought meant the intent to kill anyone. See Ward v. State, 997 P.2d 528, 533 (Alaska App. 2000) (Mannheimer, J. concurring). Thus, when a defendant acted with malice aforethought, the defendant acted with the requisite mens rea regardless of who died. Alaska avoided this debate by expressly incorporating the concept directly into the statute; an intent to kill anyone satisfies the mens rea of murder. For this reason, transferred intent is rarely discussed in Alaska case law.
Figure 9.3 Murder in the First Degree – Transferred Intent
Even though the concept is easily understood when applied to a completed crime like first-degree murder, the concept is not easily understood when applied to an inchoate crime like attempted murder. Suppose that A deliberately shoots at B with the intent to kill B, but is a terrible shot, and hits C, severely injuring her. Although C survived the attack she will be disfigured for the rest of her life. Is A guilty of attempted murder?
Ramsey v. State, 56 P.3d 675 (Alaska App. 2002) answers this question. As you read the opinion, ask yourself whether the court reached the correct and just result.
Ramsey v. State, 56 P.3d 675 (Alaska App. 2002)
56 P.3d 675
Court of Appeals of Alaska.
Evan E. RAMSEY, Appellant,
v.
STATE of Alaska, Appellee.
No. A–7295.
Oct. 11, 2002.
OPINION
COATS, Chief Judge.
A jury convicted Evan Ramsey of two counts of murder in the first degree, one count of attempted murder in the first degree, and fifteen counts of assault in the third degree. Superior Court Judge Mark Wood sentenced Ramsey to a composite term of 210 years to serve. Ramsey appeals both his conviction and his sentence. We affirm in part and reverse in part.
On Wednesday morning, February 19, 1997, sixteen-year-old Evan Ramsey entered Bethel High School with a .12 gauge shotgun hidden under his jacket. Ramsey immediately walked toward the student common area where several students were sitting. At the nearest table sat Joshua Palacios, a fellow high school student, talking with several of his friends. Palacios began to turn around and stand up when Ramsey pulled out the shotgun and shot Palacios in the stomach. Palacios later died from his wounds. Two students who were sitting across from Palacios, S.M. and R.L., were also hit by pellets from the shotgun blast.
One of the art teachers at the high school, Reyne Athanas, was in the teacher’s lounge when she heard the first gunshot. She entered the hallway and observed Ramsey shooting into the ceiling. She saw Palacios lying on the floor with another student. During this episode, Ramsey paced up and down the hall several times in a very threatening manner. She and Robert Morris, another school teacher, attempted to convince Ramsey to put the shotgun down and give up. Ramsey then aimed the gun at them, but did not shoot. Ramsey walked away from Athanas and Morris, heading in the direction of the school’s main office where the school’s administrative offices were located.
Meanwhile, Ronald Edwards, the school principal, had been walking through the school looking for Ramsey because he had heard that Ramsey was in the school with a gun. Edwards found Ramsey as he was approaching the main office. Ramsey aimed the shotgun at Edwards, and Edwards turned around to run back into the school’s office. As Edwards was trying to get back into the office, Ramsey shot him in the back and shoulder. Edwards died in his office from the gunshot wounds.
Minutes after the shooting began, Bethel police officers arrived at the high school. Several officers entered the high school and saw Ramsey standing in the common area with the shotgun. Ramsey saw the officers and fired one round in their direction. After a brief exchange of gunfire, Ramsey put the shotgun down and gave up. According to the officers, as he threw the shotgun down, Ramsey yelled “I don’t want to die.” Officers were quickly able to detain Ramsey and take him into custody.
A grand jury indicted Ramsey on two counts of first-degree murder, three counts of attempted first-degree murder, and fifteen counts of third-degree assault. The State’s theory at trial was that Ramsey sought revenge against both Palacios and Edwards. The State introduced testimony that Ramsey and Palacios got into an argument and fight two years before the shooting. The State also introduced a letter found in Ramsey’s bedroom following the shooting that indicated Edwards was one of Ramsey’s intended victims. The letter read, in part,
Hi, everybody. I feel rejected. Rejected, not so much alone. But rejected. I feel this way because the day-to-day mental treatment I get usually isn’t positive. But the negative is like a cut, it doesn’t go away really fast, they kind of stick. I figure by the time you guys are reading this, I’ll probably have done what I told everybody I was going to do. Just hope a 12–gauge doesn’t kick too hard, but I do hope the shells hit more than one person, because I am angry at more than one person. One of the big assholes is Mr. Ed—Ron Edwards, he should be there. I was told that this would be his last year, but I know it will be his last year. The main reason that I did this is because I am sick and tired of being treated this way everyday. Who gives a fuck about it? Now, I got something to say to all of those people who think I’m strange can suck my dick and like it.
Life sucks in its own way, so I killed a little and kill myself. Jail isn’t for me ever and wasn’t.
Ramsey’s major defense at trial was that he was suicidal and did not form the requisite intent to commit first-degree murder or first-degree attempted murder. According to Ramsey, his intent during the shooting was not to kill anyone but merely to scare the people at the school and force the police to go to the high school and kill him. Ramsey’s counsel described Ramsey’s actions as “suicide-by-cop.”
The jury convicted Ramsey of two counts of first-degree murder, one count of first-degree attempted murder, and fifteen counts of third-degree assault. The jury also acquitted him of two counts of attempted first-degree murder and one count of third-degree assault. Judge Wood sentenced Ramsey to a composite term of 210 years’ imprisonment.
[…]
Did Judge Wood err in instructing the jury on the charge of attempted murder of S.M.
When Ramsey shot Palacios, S.M. and R.L., two students sitting across from Palacios, were also hit by pellets from the same shotgun blast. The State’s theory was that if Ramsey, with intent to kill Palacios, shot and injured S.M., he committed attempted murder in the first degree against S.M. Ramsey objected, contending that he could only be guilty of the attempted murder of S.M. if he had acted with the specific intent to kill S.M. Judge Wood disagreed and instructed the jury that:
In order to establish the crime of Attempted Murder in the First Degree as charged in Count III of the indictment, it is necessary for the state to prove beyond a reasonable doubt the following:
First, that the event in question occurred at or near Bethel … on or about February 19, 1997;
Second, that Evan Ramsey intended to commit the crime of Murder in the First Degree as to Count II [First–Degree Murder of Palacios] and;
Third, that the defendant shot S.M. with a firearm, which constituted a substantial step toward the commission of Murder in the First Degree.
Judge Wood allowed the State to argue in summation that if Ramsey had fired the shotgun at Palacios with the specific intent to kill him and had simultaneously injured S.M. (thereby taking a substantial step), Ramsey was guilty of attempted murder in the first degree of S.M. Judge Wood precluded Ramsey from arguing to the jury that the jury had to find that Ramsey had a specific intent to kill S.M. to find him guilty of the attempted murder of S.M. Ramsey contends that Judge Wood erred. We agree.
The parties point out that other jurisdictions that have addressed this or similar issues have reached entirely different results. Some jurisdictions hold that attempted murder is appropriately charged if the defendant’s actions killed the intended victim and also injured an unintended victim as a matter of public policy and deterrence. Other jurisdictions have held that attempted murder is an inappropriate charge under the theory that attempt, as an inchoate offense, requires the specific intent to kill a specific victim.
The doctrine of transferred intent arose in early common law to impute criminal liability to a person who, acting with the intent to harm, caused injury to an unintended victim. To avoid injustice, courts developed the theory of transferred intent, holding the individual responsible for the injury or death to the unintended victim. Most commentators, however, note that transferred intent is a misleading half-truth because at common law the requisite mental state was “malice aforethought,” which included the intent to kill anyone. These commentators note that the law, even at common law, did not require the ultimate person harmed be the intended victim.
The doctrine of transferred intent is unnecessary to ensure criminal liability under Alaska’s statute defining first-degree murder.
Alaska Statute 11.41.100 defines murder in the first degree as:
(1) with intent to cause the death of another person, the person (A) causes the death of any person. (emphasis added).
The plain language of AS 11.41.100 imputes criminal liability to anyone who, with the intent to cause death, causes death. The statute does not require the State to prove that a defendant had a specific intent to cause the death of a particular person to convict the defendant of murder. Therefore, under Alaska law, if a defendant acts with the intent to cause the death of another person, the defendant is guilty of murder for the death of any person whose death is caused by his act.
The question presented in this case is whether a similar rationale can be applied to attempted first-degree murder. To be guilty of attempted first-degree murder in Alaska, a person must (1) intend to cause the death of another, and (2) take a substantial step causing the death of any person. The State argues that Ramsey intended to cause the death of Palacios and that his wounding of Palacios was a substantial step towards causing S.M.’s death.
The problem with the State’s argument is that its logic leads to the conclusion that Ramsey could have been found guilty of the attempted murder of everyone in the school. The jury certainly found that Ramsey intended to cause the death of Palacios. And because his actions would have placed almost any reasonable person in the school in fear of serious physical injury, it is hard to say where the State’s attempted murder theory would stop. A defendant can be found guilty of attempted murder whether or not he actually injures his intended victim. Therefore, the State’s argument, carried to its logical extension, would allow it to convict Ramsey of the attempted murder of everyone in the building.
[…]
The jury found that Ramsey acted with intent to kill Palacios. Thus, his act of firing the shotgun at Palacios would constitute either attempted first-degree murder (if Palacios survived) or completed first-degree murder (if Palacios died). If, at the same time, Ramsey killed or injured one or more bystanders while he was trying to kill Palacios, Ramsey would be guilty of an additional crime for each of these bystanders—not an additional attempted murder, but rather an additional homicide if the bystander died or, if the bystander survived, either an attempted homicide or an assault, depending on Ramsey’s culpable mental state with regard to that bystander.
Here, under the jury instructions that embodied the State’s erroneous theory of attempted murder, the jury was asked to find whether Ramsey wounded S.M. while trying to kill Palacios. The jury so found. But the jury was not asked to decide other pertinent matters.
For instance, if Ramsey had intended to kill S.M. (in addition to Palacios), then Ramsey could properly be convicted of the attempted murder of S.M. (regardless of whether he injured S.M.). Even if Ramsey did not intend to kill S.M., if Ramsey inflicted serious physical injury on S.M., while trying to kill Palacios, he might properly be convicted of first-degree assault on S.M. Alternatively, if Ramsey merely inflicted physical injury on S.M. (while trying to kill Palacios), he might properly be convicted of second-degree assault on S.M.
Accordingly, we conclude that Judge Wood erred in instructing the jury and allowing the State to argue that it could convict Ramsey of attempted murder of S.M. if Ramsey intended to kill Palacios and simultaneously injured S.M. We conclude that the proper instruction would have required the jury to find Ramsey had the specific intent to kill S.M. before it could convict Ramsey of the attempted murder of S.M. Based on this rationale, Ramsey’s conviction for attempted murder in the first degree must be reversed.
[…]
Ramsey’s conviction for attempted murder in the first degree is REVERSED. His other convictions are AFFIRMED.
The More You Know . . .
Sadly, the Bethel high school shooting occurred long before similar incidents like Columbine, Sandy Hook, or Parkland. The circumstances surrounding mass shooting incidents (e.g., school shootings) have long been explored by researchers. According to a 2019 U.S. Secret Service analysis, all school shooting attackers between 2008 and 2017 exhibited concerning behaviors (engaged in behavior that caused fear, issued direct threats of violence, or brought weapons to school), most of whom communicated their intent to attack prior to the incident. For more information, see Protecting America’s Schools: A U.S. Secret Service analysis of targeted school violence. Washington, DC: Department of Homeland Security, U.S. Secret Service. (2019). Numerous states have implemented school safety tiplines in an effort to provide resources to alert authorities of disturbing behaviors before a mass shooting event occurs. See e.g., www.safeoregon.com or www.safeut.med.utah.edu. Some have had great success.
Heat of Passion
The law provides for a unique defense to intentional murder – heat of passion. Heat of passion is a killing that occurs during an extreme emotional state before the defendant has a reasonable time to calm down, provoked by the victim’s conduct. Historically, the defense was raised in cases involving adulterous murders. A defendant discovered their spouse in bed with a lover, and in an emotional rage, the defendant killed both spouse and lover. The common law recognized that such circumstances were likely isolated, mitigated, and deserving of a lesser punishment. This lesser punishment was referred to as the crime of “voluntary manslaughter” – a purposeful murder resulting from the victim’s serious provocation. The law recognized that the killing itself was unreasonable, but understandable.
Figure 9.4 Alaska Criminal Code – Defenses to Murder
Heat of passion defense requires the killing to be in response to the victim’s serious provocation. If a victim “seriously provokes” a defendant, and the defendant kills the victim in an intense rage, the intentional murder is reduced to manslaughter. Thus, the heat of passion defense mitigates the seriousness of an intentional murder if the defendant unreasonably kills based on intense emotion. Heat of passion differs markedly from self-defense. Self-defense only justifies objectively reasonable killings, and it is a complete defense to the charge, resulting in an acquittal. Heat of passion mitigates unreasonable killings. See Ha v. State, 892 P.2d 184, 197 n.6 (Alaska App. 1995). Heat of passion is classified as an imperfect defense. A defendant acting under a heat of passion is partially excused of criminal liability. Instead of being guilty of intentional murder, the defendant is guilty of manslaughter.
The modern defense encompasses more than anger or rage; it includes fear, terror, and other intense emotions. This is not to say that a defendant’s “passion” is simply a subjective fear or anger. Instead, the defendant’s emotional condition – that is, the defendant’s response – must be reasonable, even though the killing itself is unreasonable. The trier of fact evaluates the existence (or non-existence) of serious provocation through the eyes of a reasonable (and sober) person standing in the defendant’s shoes.
Heat of passion is temporary. A defendant is only entitled to rely on heat of passion if they did not have a reasonable opportunity to cool. The next case, Luch v. State, 413 P.3d 1224 (Alaska App. 2018), focuses on the circumstances that may give rise to a valid heat of passion defense. As you read Luch, pay close attention to the source of the defendant’s belief of adultery.
Luch v. State, 413 P.3d 1224 (Alaska App. 2018).
413 P.3d 1224
Court of Appeals of Alaska.
Robert James LUCH, Appellant,
v.
STATE of Alaska, Appellee.
Court of Appeals No. A-11756
January 19, 2018
OPINION
Judge MANNHEIMER.
Robert James Luch was convicted of first-degree murder for shooting and killing his wife, Jocelyn. In this appeal, Luch argues that the trial judge committed error by failing to instruct the jury on the defense of heat of passion. […] For the reasons explained in this opinion, we conclude that … Luch’s [heat of passion] claim[] [has no] merit, and we therefore affirm his conviction.
Underlying facts
In the summer of 2010, Robert Luch and his family—his wife Jocelyn and their four children (Brent, Delia, Letitia, and Marcelyn)—moved back to Anchorage from their winter home in Arizona. One night in June, Luch awakened and noticed that the telephone was in use. When he picked up the receiver, Luch discovered that his wife Jocelyn was speaking with a man—Bryan Fuqua. Luch exchanged words with Fuqua. During their short but heated conversation, Fuqua indicated that his relationship with Jocelyn either was, or would shortly become, sexual. After hearing this, Luch hung up the phone. He woke up the children, and he angrily accused Jocelyn of having an affair.
During the next several months, the family lived in a state of uneasy tension. Luch and Jocelyn spoke little, and Jocelyn began staying out late, sometimes not coming home until the following day. The couple’s daughter Marcelyn later told the police that, during this period, Luch repeatedly threatened to kill both Jocelyn and the man he believed she was seeing.
In August, two of the Luchs’ children (Delia and Letitia) moved back to Arizona to attend college. This left four people in the Anchorage household: Luch, Jocelyn, and their children Marcelyn and Brent.
On September 17, 2010, Luch purchased a handgun, purportedly for protection at the family cabin near Sutton. Luch did not inform Jocelyn of this purchase; the only other family member who knew about the gun was Luch’s son Brent.
Eleven days later, on the morning of September 28, 2010, Luch learned that a car he had loaned to his daughter Delia had been impounded in Arizona. Luch was incensed, and he began yelling at Delia on the telephone. Brent overheard this conversation and tried to calm things down, but Luch turned on Brent, and a fist fight ensued. Luch’s daughter Marcelyn eventually intervened and stopped the fight, but Luch was still angry.
Luch then drove to the hotel where his wife Jocelyn worked and tried to see her, purportedly so that he could tell her about the impoundment of Delia’s car and his fight with Brent. When Jocelyn could not leave her work station immediately, Luch parked his vehicle behind the hotel and waited for several hours, becoming angrier as time passed. Eventually, Luch drove home without Jocelyn, and Brent and Marcelyn later picked Jocelyn up.
That same night, Marcelyn and Jocelyn were scheduled to run in a race held at Kincaid Park. A friend of Jocelyn’s, a runner named Steve Crook, came to pick them up. At the last minute, Marcelyn decided not to go.
When Luch learned that Marcelyn had not accompanied Jocelyn to the race, he insisted that Marcelyn go with him to Kincaid Park to confirm that Jocelyn was actually at the race. At the park, they stood near the finish line and watched as hundreds of racers crossed the finish line, but they did not see Jocelyn.
Once the race was over, Marcelyn called Jocelyn on her cell phone. Jocelyn said that she was at a nearby bunker. (Kincaid Park was built on the site of a former missile installation.) Marcelyn suggested to Luch that he drive to the bunker while she walked over there and found Jocelyn. But as Marcelyn was walking toward the bunker, Jocelyn spoke to her again on the phone: Jocelyn corrected herself and said that she was not at the bunker, but rather at the adjacent Kincaid chalet. Marcelyn was unable to inform Luch of this new information because she (Marcelyn) had his cell phone.
Marcelyn went to the chalet and found her mother, but Luch did not arrive to pick them up. Luch had apparently driven around the Kincaid parking lot, honking repeatedly and becoming increasingly agitated, until finally he drove home alone.
When Jocelyn and Marcelyn realized that Luch was not coming for them, Marcelyn called her brother Brent, who came and picked them up.
When Jocelyn and the children arrived home, Luch was sitting in his recliner in the downstairs living room. He repeatedly accused Jocelyn of not having run the race.
Brent and Marcelyn soon went to their bedrooms upstairs. Jocelyn also went upstairs and began preparing for bed. Luch came upstairs and confronted her—accusing her of lying about participating in the race, and accusing her of seeing another man. Jocelyn assured Luch that she had been at the race, and she denied any wrongdoing, but Luch was not convinced. He went downstairs to the garage, where he retrieved the newly purchased handgun from a locked storage room. He then went back upstairs.
According to Luch’s testimony at trial, he did not retrieve the gun with the intent of harming his wife. Rather, Luch told the jury that he intended to use the gun “to posture, to stage.” Luch testified that, by simply displaying the gun to Jocelyn, he hoped to convince her that he was willing to shoot any man she was seeing, so that she would then “relay a message” to this man.
By the time Luch returned upstairs, Jocelyn had gone into the bathroom. Luch followed her there. Shortly thereafter, Marcelyn heard Jocelyn say, “Don’t push me”—and then she heard two gunshots. Marcelyn and Brent rushed into the hallway, and Marcelyn saw Luch leave the bathroom and go downstairs carrying the handgun. Luch said nothing to his children.
The children had to force their way into the bathroom because Jocelyn’s body was blocking the door. Jocelyn was still alive, but she was bleeding from two gunshot wounds. Brent located Jocelyn’s cell phone and called 911.
The police arrived within minutes. Anchorage Police Officer Mark Bakken entered the house and stayed with Jocelyn until an ambulance arrived. During that brief conversation, Jocelyn told the officer that Luch had shot her because she wanted to divorce him and she refused to return to Arizona with him.
While this was happening, Luch took the handgun back to the storage room of the garage, and he then left the house. The police found Luch walking down the street. Luch told them, “I’m the one you want.”
Jocelyn was taken to the hospital, but she died from her wounds. Luch was indicted for this homicide under alternative theories of first- and second-degree murder.
Luch’s claim that he was entitled to a jury instruction on the defense of heat of passion
Luch contends that the trial judge committed error by rejecting his attorney’s request for a jury instruction on the defense of “heat of passion”. We will first describe the law in Alaska regarding heat of passion, and then we will explain why Luch was not entitled to a jury instruction on this defense.
(a) Explanation of the defense of heat of passion under Alaska law
The defense of heat of passion is defined in AS 11.41.115. This statute declares that heat of passion is a partial defense to two types of murder:
• a homicide charged under AS 11.41.100(a)(1)(A)—i.e., an intentional killing that would otherwise be first-degree murder, or
• a homicide charged under AS 11.41.110(a)(1)—i.e., a killing that would otherwise be second-degree murder because it resulted from an assault where the defendant intended to inflict serious physical injury, or where the defendant knew that the assault was substantially certain to cause death or serious physical injury.
The defense of heat of passion applies to instances where the defendant “acted in a heat of passion … result[ing] from a serious provocation by the intended victim”, and where the defendant assaulted the victim “before there [was] a reasonable opportunity for the passion to cool”. AS 11.41.115(a).
For purposes of the heat of passion defense, the term “serious provocation” is defined to mean “conduct … sufficient to excite an intense passion in a reasonable [and unintoxicated] person in the defendant’s situation, … under the circumstances as the defendant reasonably believed them to be”. AS 11.41.115(f)(2). However, the statute limits the scope of “serious provocation” by adding that “insulting words, insulting gestures, or hearsay reports of conduct engaged in by the intended victim do not, alone or in combination with each other, constitute serious provocation.” Ibid.
Although heat of passion is a defense to first-degree murder charged under AS 11.41.100(a)(1)(A) or second-degree murder charged under AS 11.41.110(a)(1), it is only a partial defense. Heat of passion does not exonerate the defendant; instead, it reduces the crime to manslaughter. See AS 11.41.115(e).
[…]
(b) There was insufficient evidence that Luch was subjected to a “serious provocation” within the meaning of the heat of passion statute
A defendant is entitled to have the jury instructed on a defense if the defendant presents “some evidence” of that defense. In this context, the phrase “some evidence” is a term of art. It means evidence which, if viewed in the light most favorable to the defendant, is sufficient to allow a reasonable juror to find in the defendant’s favor on every element of the defense.
As we explained in the preceding section of this opinion, the elements of the defense of heat of passion are (1) that Luch shot his wife “in a heat of passion”, (2) that this passion was the result of a “serious provocation” (as that phrase is defined in the statute), and (3) that Luch shot his wife before there was a reasonable opportunity for his passion to cool.
Even when the evidence in this case is viewed in the light most favorable to Luch’s proposed defense, there was insufficient evidence that Luch was subjected to a “serious provocation”.
The governing statute, AS 11.41.115(f)(2), defines “serious provocation” as “conduct … sufficient to excite an intense passion in a reasonable [and unintoxicated] person in the defendant’s situation, … under the circumstances as the defendant reasonably believed them to be”. Here, the alleged “serious provocation” was the purported fact that Luch’s wife was having an affair.
As we explained earlier in this opinion, there was evidence that, several months before the shooting, Luch learned that his wife might have been having an affair—in particular, the testimony about the overheard phone call, and about Jocelyn’s refusal to explain why she was spending several nights a week away from the marital home.
But in Luch’s trial testimony, he conceded that his relationship with his wife was significantly better in the two months immediately preceding the shooting. And there was no evidence that Luch knew or even reasonably believed at the time of the shooting that Jocelyn was having an affair. There was plenty of evidence that Luch suspected that his wife was having an affair at that time, but even Luch conceded in his trial testimony that he did not know whether his suspicions were well-founded.
At trial, Luch’s attorney asked him whether his suspicions intensified on the day of the killing (September 28, 2010), after Luch went to pick up Jocelyn from work and ultimately left without her. Luch’s attorney asked him, “At [that] point, are you thinking she’s cheating?”, Luch responded:
Possibly. I—I don’t want to believe that. I want to trust my wife very badly. … I want to believe the best scenario, so I’m trying to resist going that direction in my thought. But there’s, of course, there’s a, there’s some doubts. I’m not sure.
Later that day, after the incident in Kincaid Park where Luch was unable to locate Jocelyn at the race, Luch was waiting at home when Jocelyn and the children (Marcelyn and Brent) arrived home from Kincaid Park. According to Luch, he was “festering” because he strongly suspected that his wife had not run the race at Kincaid Park—that she was “off on another tryst”. But Luch added that he was not sure about this. He explained that he was “trying to hold it all together” because “there might be something [he was] not aware of”—for instance, the possibility of “a mechanical breakdown”, or a “different finish line” to the race.
When Jocelyn got home, Luch repeatedly accused her of not having run in the race. But Jocelyn did not respond to these accusations; instead, she went upstairs after a few minutes and started preparing for bed. Luch followed her upstairs and confronted her—accusing her of lying about participating in the race, and accusing her of seeing another man. Jocelyn assured Luch that she had been at the race, and she denied any wrongdoing, but Luch was not convinced. At that point, Luch went to the garage, obtained the handgun, and returned to his wife’s bathroom.
At common law, one classic example of “serious provocation” was the defendant’s discovery of their spouse’s adultery. However, the common law required that the defendant find their spouse in flagrante delicto—that is, in the very act of committing adultery. Reflecting this principle, Alaska’s statutory definition of “serious provocation”, AS 11.41.115(f)(2), expressly declares that a “serious provocation” cannot be based on hearsay reports.
Thus, when a defendant claims that they committed a deadly assault in response to a discovery of adultery, that “discovery” must be based on the defendant’s personal knowledge, and not the defendant’s suspicions or conclusions based on hearsay accounts (which are expressly excluded by the statute).
The fact that, several months before the shooting, Luch may have had good reason to believe that Jocelyn was having an affair does not mean that Luch was experiencing a “serious provocation” when, on the day of the race, he could not find Jocelyn where he expected her to be. Luch never claimed that he had personal knowledge of his wife’s adultery, and there was no evidence that Jocelyn admitted adultery to him. In fact, the evidence was that Jocelyn denied any wrongdoing when Luch confronted her on the day of the killing.
Nor was there evidence that Luch reasonably believed that Jocelyn was committing adultery. Although Luch repeatedly expressed suspicions that his wife was having an affair, he conceded on the stand that his doubts about his wife’s fidelity were unconfirmed, and that he knew there were other potential explanations for his failure to see Jocelyn at the finish line of the race at Kincaid Park.
We therefore hold that Luch failed to present some evidence that he was subjected to a “serious provocation” as that term is defined in AS 11.41.115(f)(2). Because of this, we affirm the trial judge’s decision not to instruct the jury on the defense of heat of passion.
[…]
Conclusion
The judgement of the superior court is AFFIRMED.
The trier of fact must assess the circumstances the defendant faced from the perspective of a “reasonable person.” A reasonable person means a reasonable, mentally healthy person whose cognitive abilities are not influenced by mental difficulties, such as a head injury, intoxication, or cultural background. Provocation is measured from an ordinary person’s perspective, which causes the person to lose their normal self-control. Also, the victim’s conduct that gives rise to serious provocation must be based on information that the defendant knows. It may not be based on information that the defendant heard or suspects is true.
Second-Degree Murder
Second-degree murder is non-intentional murder. Generally speaking, second-degree murder encompasses implied malice murders, such as murder committed with the intent to inflict serious physical injury or extreme reckless killings. In Alaska, a person can commit second-degree murder in five separate ways, but all expressly exclude murder with the intent to kill. Instead, second-degree murder includes circumstances where the defendant intends to cause serious injury but causes death, death caused under circumstances manifesting an extreme indifference to human life, or commits felony murder.
Figure 9.5 Alaska Criminal Code – Murder in the Second Degree
Notice that subsection (a)(1) embodies two separate theories of second-degree murder. The first clause – the “serious-physical-injury theory” – requires the defendant to intend to cause serious physical injury to the victim and cause death. We will explore serious physical injury in more detail in the next chapter, but generally, serious physical injury includes any significant injury. “Intent-to-maim” murders fall within this category. For example, a jury could infer that a defendant who stabs their victim eight times in the leg had a conscious objective to cause serious injury to the victim. Should the victim die as a result of the stabbing, the defendant would be guilty of second-degree murder under the “serious-physical-injury theory”. AS 11.41.110(a)(1).
The second clause defines second-degree murder as knowingly engaging in conduct that “is substantially certain to cause death or serious physical injury to another person.” AS 11.41.110(a)(1). This type of murder requires more than reckless conduct. The defendant must be substantially aware that his conduct would result in the victim’s death or serious physical injury. See e.g., Morrell v. State, 216 P.3d 574, 577 (Alaska App. 2009). “Shooting into a crowded room without an intent to cause death or serious physical injury” would be an example of the type of conduct that would be punishable under the second clause of subsection (a)(1). See legislative commentary, 1978 Senate Journal Supp. No. 47, at 10.
Subsection (a)(2) criminalizes extreme reckless murders. Extreme recklessness is a non-codified culpable mental state that requires the jury to determine whether the defendant caused the death under circumstances that created an extreme indifference to the value of human life. This phrase – extreme indifference to the value of human life – is nebulous by design. In answering this question, the trier of fact (e.g., the jury) is obligated to balance four factors:
1. the social utility of the defendant’s conduct;
2. the magnitude of the risk the defendant’s conduct created, including both the nature of the harm that was foreseeable by the defendant and the likelihood that the defendant’s conduct would cause that harm;
3. the defendant’s knowledge of the risk; and
4. any precautions the defendant took to minimize the risk.
See generally Neitzel v. State, 655 P.2d 325, 337 (Alaska App. 1982).
The mental state requires the jury to assess the level of recklessness of the defendant’s conduct. The jury must weigh the social utility of the defendant’s conduct (if any) against the precaution the defendant took to minimize the apparent risks. Recall that playing “Russian Roulette,” is incredibly dangerous and completely lacks any social utility, but shooting in the direction of a victim of a bear attack may demonstrate some social utility despite the magnitude of the risk. See id. As always, whether a particular act constitutes extreme recklessness is a question of fact for the jury.
Felony murder, given its unique history and application will be discussed separately in the next section.
Even though second-degree murder is not as “serious” as intentional murder, it remains an unclassified felony offense with a sentencing range of 20 to 99 years imprisonment. Although the mandatory minimum sentence for second-degree murder (20 years) is less than first-degree murder (30 years).
Exercises
Answer the following questions. Check your answers using the answer key at the end of the chapter.
1. Jay is angry about the grade he received on his criminal law midterm. Jay pulls a loaded revolver out of his backpack, aims at a tree and fires in an attempt to release his frustrations. Unfortunately, Jay is an inexperienced marksman and the bullet strikes an innocent bystander in the forehead, killing him. What was Jay’s criminal intent when shooting the revolver?
2. Johnnie decides he wants to kill Marcus, the leader of a rival gang. Johnnie knows that Marcus always hangs out in front of the gas station on Friday nights. Johnnie puts his gun in the glove compartment of his car and drives to the gas station on a Friday night. He sees Marcus standing out front. He slowly drives by, takes aim, and shoots Marcus from the car, killing him. Could this be first-degree murder? Explain your answer. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/09%3A_Criminal_Homicide/9.02%3A_Murder.txt |
One theory of second-degree murder is felony murder. Felony murder is a criminal homicide that occurs during the commission or attempted commission of an inherently dangerous felony. Under Alaska’s felony murder rule, a defendant is guilty of second-degree murder if the defendant commits one of the enumerated felonies and during the course of the felony, a person (other than an accomplice) dies. Most states and the federal government include felony murder in their respective penal codes, although it has not been universally adopted.
Figure 9.6 Alaska Criminal Code – Felony Murder Rule
Under Alaska’s felony murder rule, the defendant does not have to act with malice or with a “murderous intent.” Instead, the defendant’s malice is “transferred” or imputed from the malice involved in the commission of the underlying felony. In some ways, the felony murder rule is similar to the Natural and Probable Consequences Doctrine. When a defendant commits an inherently dangerous felony, he or she does so reasonably aware that an innocent victim may die. The defendant’s malice is implied in the decision to commit the felonious act. The felonies that create a foreseeable risk of violence or death include arson, kidnapping, sexual assault, sexual abuse of a minor, burglary, escape, robbery, and drug-trafficking. One inherently dangerous felony that is omitted is felony assault. This is because a death that results from an assault is already covered in traditional theories of second-degree murder.
Alaska law also includes an aggravated felony murder rule: if a person commits a sexual offense or kidnapping against a minor, first-degree criminal mischief, or first-degree terroristic threatening, and during the course of the offense another person dies (other than a co-participant), the perpetrator is guilty of first-degree murder, not second-degree murder. AS 11.61.100(a)(3)-(a)(5).
Felony murder covers all killings that occur during the course of, in furtherance of, or the immediate flight from, one of the enumerated felonies. Defendants are responsible for any deaths a non-coconspirator that occur throughout the felonious enterprise. Because the purpose of the felony-murder rule is to diminish the risk of unintentional or even accidental killings during the commission of violent felonies, it is a controversial criminal law doctrine. The doctrine authorizes significant penalties for otherwise purely “accidental” deaths. As you explore the felony murder rule below, ask yourself whether the felony murder rule is a fair and just application of criminal liability.
Example of Felony Murder
Jackie, who has just lost her job, decides to burn down her apartment building because she cannot afford to pay the rent. Jackie carefully soaks her apartment with lighter fluid, exits into the hallway, and throws a lit, lighter-fluid-soaked towel into the apartment. She then runs outside to watch the entire building burn down. Jackie forgot that the apartment building is occupied by several other residents. As the apartment burns, several tenants die of smoke inhalation while trapped inside.
In this example, Jackie did not intend to kill the tenants. However, she did have the criminal intent necessary for first-degreearson (i.e., intentionally setting a fire that recklessly endangers another person). AS 11.46.400. In Alaska, Jackie is guilty of second-degree murder under the felony murder rule for each death. Jackie is also guilty of first-degree arson. Jackie will receive separate punishments for each conviction. Under this scenario, Jackie intentionally engaged in conduct that created a foreseeable risk that other people would be seriously injured or killed.
Co-Felon Liability
It is common for defendants to collaborate on criminal activity. As we have seen, both accomplice liability and conspiracy may place criminal responsibility squarely on a defendant who did not commit the offense when defendants cooperate in criminal activity. The felony murder rule is an extension of this concept. If one defendant kills a person during the commission of a felony, then all accomplices involved in the felony are guilty of murder. AS 11.41.110(a)(3). This is true even if the accomplice did not intend or anticipate anyone would be killed or injured.
Example of Co-Felon Liability
Joe and Jane dream up a plan to rob a local bank. They both agree that Joe will be the primary robber and will enter the bank, armed with a pistol, and hand a note to the teller that demands all of the money in the till. Jane’s role will be more limited – they agree that Jane will drive the getaway car; Jane will wait outside the front door with the motor running and drive Joe away from the bank after the robbery. On the day of the robbery, Jane drives them to the bank and Joe walks in, armed with a pistol. After Joe passes the note to the teller, the teller frantically summons the security guard. As the security guard approaches, Joe panics and pulls out the gun. Several customers start to scream. In all of the excitement, Joe accidentally shoots an elderly lady standing next to the security guard, killing the customer instantly.
In this case, Joe and Jane are both guilty of second-degree murder under the felony-murder rule. As we have previously discussed, Jane is an accomplice to Joe’s first-degree robbery under accomplice liability. But Joe and Jane are also both guilty of murder, even though neither had an intent to kill (or seriously injure) anyone during the bank robbery. The felony-murder rule allows both to be held criminally liable for second-degree murder because it is reasonably foreseeable that a person may be killed during a bank robbery.
Exceptions to Co-Felon Liability for Felony Murder
As you can see, the felony-murder rule has broad reach. Two important exceptions exist. First, a person cannot be convicted of felony-murder when the death is to one of the other participants in the felony (i.e., accomplice). Alaska’s felony-murder statute expressly excludes criminal liability if the person killed is one of the participants.
Example of Exception to Co-Felon Liability for Felony Murder
Let’s change the hypothetical of Joe and Jane. Assume that instead of Joe shooting the elderly lady, let’s assume that the security guard shoots and kills Joe. Under this scenario, Jane would not be guilty of second-degree murder under the felony murder rule for Joe’s death. Although Joe’s death occurred during the commission of the robbery, the felony-murder statute expresses excludes the death of a co-participant from the rule.
Jane is still guilty of first-degree robbery, but under traditional accomplice liability principles. And, as you will see next, Jane is also likely guilty of manslaughter for Joe’s death.
Pfister v. State, 425 P.3d 183 (Alaska App. 2018)
Alaska’s felony murder statute expressly prohibits holding a defendant responsible for second-degree murder if the death is to a co-felon. But does that mean the defendant is excused of all criminal liability for the resulting homicide? The next case, Pfister v. State, answers that question.
425 P.3d 183
Court of Appeals of Alaska.
Brian Albert PFISTER, Appellant,
v.
STATE of Alaska, Appellee.
Court of Appeals No. A-12019
May 18, 2018
OPINION
Judge MANNHEIMER.
In November 2011, Brian Albert Pfister and two accomplices—Joseph Trantham and Maurice Johnson—decided to break into the home of a marijuana grower and rob him. Pfister waited outside while his two accomplices entered the marijuana grower’s home.
Once Trantham and Johnson were inside the home, they pistol-whipped the marijuana grower and demanded his money. The marijuana grower led Trantham and Johnson to his safe—where, unbeknownst to the robbers, he kept a handgun. The grower removed the handgun from the safe and used it to shoot Trantham and Johnson—mortally wounding both of them. Pfister ran away, but he was later arrested.
The State charged Pfister with first-degree burglary, first-degree robbery, and conspiracy to commit robbery. The State also charged Pfister with two counts of manslaughter, for causing the deaths of his two accomplices. Following a jury trial, Pfister was convicted of all these crimes.
In this appeal, Pfister challenges his two manslaughter convictions. He asserts that, under Alaska law, an accomplice to a dangerous felony cannot be convicted of manslaughter when the person who is killed as a result of the felony is another accomplice.
Pfister notes that, under Alaska law, he could not be convicted of felony-murder for the deaths of his accomplices. This is because the portion of the second-degree murder statute that defines felony-murder, AS 11.41.110(a)(3), expressly exempts situations where the person who dies during a violent felony is “one of the participants” in that felony.
Based on the fact that Alaska’s felony-murder statute does not cover situations where a felony results in the death of an accomplice to that crime, Pfister argues that the Alaska Legislature also must have intended to exempt accomplices to a felony from any criminal liability for the death of another accomplice. Thus, under Pfister’s view of the law, he could not be convicted of manslaughter or any other degree of criminal homicide based on the deaths of his two accomplices to the burglary and robbery in this case.
As we explain in this opinion, Pfister’s argument is inconsistent with the common law defining the crime of manslaughter. Based on that common law, and based on the hundred-year history of Alaska’s manslaughter statute, we conclude that Pfister’s proposed limitation on the crime of manslaughter is inconsistent with the intent of the Alaska Legislature. We therefore uphold Pfister’s two manslaughter convictions.
[…]
The common-law definition of manslaughter, and the related doctrines of felony-murder and misdemeanor-manslaughter
At common law, the crime of manslaughter was a residual category of unlawful homicide. Manslaughter was defined as any unlawful homicide committed without malice aforethought—that is, any unlawful homicide that was not murder.
Thus, whenever a person caused the death of another human being, and if that killing was neither justified nor excused, and if the killing did not constitute some form of murder, then the person was guilty of manslaughter.
One of the forms of murder recognized at common law was “felony-murder”. In the early days of the common law, this doctrine applied only to homicides that were caused during an attempt to perpetrate a felony—because, in those days, any completed felony was already punishable by death.
Later, when the law allowed lesser penalties for felonies, the felony-murder doctrine was altered to cover any unintended homicide that resulted from the perpetration or attempted perpetration of an inherently dangerous felony, or from any other felony that was perpetrated in a dangerous manner. In such instances, the common law viewed the defendant’s intent to commit the felony as “malice aforethought”—thus elevating the homicide to murder—even though the defendant had no intent to kill.
Because the only intent required for felony-murder was the intent to commit the felony, the felony-murder rule applied to deaths that were attributable to the commission of a felony even if those deaths were unforeseen or even quite unexpected:
If [the] intent [to commit the felony] is shown[,] the resulting homicide is murder even if it was quite accidental. … [For example,] if arson results in the death of a fireman who was trying to put out the fire, the arsonist is recognized as having caused this death and is guilty of murder under the felony-murder rule.
Indeed, even the accidental killing of an accomplice during the perpetration of the felony was felony-murder for this same reason.
The common law also recognized a related doctrine that is commonly referred to as the “misdemeanor-manslaughter” rule.
Under this rule, a person was guilty of manslaughter if they engaged in any unlawful act that was not covered by the felony-murder rule and, as a result, another person died.
The misdemeanor-manslaughter rule is sometimes treated as if it were a separate legal doctrine, distinct from (but related to) the felony-murder rule. However, in truth, the misdemeanor-manslaughter rule follows directly from the definition of manslaughter.
As we explained earlier, the common law defined manslaughter as any unlawful homicide that did not constitute murder. Thus, if a person engaged in an unlawful act, and if that act resulted in the unintended death of another human being, and if that death did not constitute felony-murder, then the crime was manslaughter.
[…]
Alaska’s current definitions of manslaughter and felony-murder
[U]nder Alaska’s pre-1980 criminal law, the crime of murder did not include unintended killings, even when those killings resulted from the perpetration of a felony. Instead, the crime of manslaughter encompassed all unintended killings that resulted from any unlawful act.
The drafters of Alaska’s current criminal code made significant changes to this area of the law. They created Alaska’s first true felony-murder rule, and they also made two substantive changes to the definition of manslaughter.
Alaska now has a felony-murder provision—AS 11.41.110(a)(3)—that mirrors the common-law doctrine of felony-murder in most respects. Under this statute, an unintended homicide is now murder (second-degree murder) if the homicide occurs during the commission or attempted commission of a specified serious felony:
(a) A person commits the crime of murder in the second degree if …
(3) under circumstances not amounting to murder in the first degree under AS 11.41.100(a)(3), while acting either alone or with one or more persons, the person commits or attempts to commit [one of the enumerated felonies] and, in the course of or in furtherance of that crime or in immediate flight from that crime, any person causes the death of a person other than one of the participants[.]
For purposes of the present appeal, the key aspect of this felony-murder provision is that it departs from the common-law rule with respect to the death of an accomplice. At common law, if an accomplice died during the perpetration of a felony, the surviving accomplices could be convicted of felony-murder. But under Alaska’s felony-murder statute, a person cannot be convicted of felony-murder based on the death of one of the other participants in the felony.
The drafters of AS 11.41.110(a)(3) did not explain why they placed this limitation on the scope of the felony-murder doctrine. However, Professor LaFave notes that several other modern criminal codes contain this same limitation on the felony-murder rule. And some modern appellate court decisions have reached this conclusion as a matter of statutory interpretation—although this approach is certainly not unanimous.
Turning to the crime of manslaughter, the drafters of our current criminal code modified the definition of this crime in two substantive ways.
First, negligent homicide became a crime in its own right—defined separately from manslaughter, and punishable by a lesser penalty. See AS 11.41.130.
Second, the drafters of our criminal code decided to abolish the “misdemeanor-manslaughter” rule—the rule that a person was guilty of manslaughter if they unintentionally caused the death of another human being while perpetrating any unlawful act (unless the unlawful act was the kind that would support a conviction for felony-murder).
The drafters abolished the misdemeanor-manslaughter rule by defining manslaughter in a new way. Under the drafters’ manslaughter statute, AS 11.41.120(a), it was no longer sufficient for the government to prove that the defendant acted with the intent to commit an unlawful act, and that a death ensued. Instead, the government would have to prove that the defendant acted either intentionally, knowingly, or recklessly with regard to the possibility that their conduct might cause the death of another human being:
(a) A person commits the crime of manslaughter if the person … intentionally, knowingly, or recklessly causes the death of another person under circumstances not amounting to murder in the first or second degree.
Former AS 11.41.120(a) (pre-2006 version).
By requiring proof of one of these three culpable mental states, the manslaughter statute effectively abolishes the misdemeanor-manslaughter rule—a rule that did not require proof of any culpable mental state apart from the intent to perpetrate an unlawful act.
(The manslaughter statute omits “negligence” from the list of culpable mental states because, as we explained earlier, criminally negligent homicide is now independently defined as a lesser crime.)
Why we conclude that, even though Pfister cannot be convicted of felony-murder for the deaths of his accomplices, he can be convicted of manslaughter for these deaths
As we explained at the beginning of this opinion, Pfister was convicted of two counts of manslaughter based on the deaths of his two accomplices in the robbery. Pfister argues that the Alaska Legislature did not intend the manslaughter statute to apply to situations like his.
Pfister notes that AS 11.41.110(a)(3) expressly exempts people in his situation from conviction for second-degree murder under a felony-murder theory. Based on this, Pfister argues that the legislature must also have intended for there to be no lesser criminal liability for people in his situation—and that, therefore, he cannot be convicted of manslaughter based on the deaths of his two accomplices.
We conclude that when an accomplice to a felony is killed by the victim, or by police officers responding to the crime, Alaska law allows the surviving accomplices to be prosecuted for manslaughter (or for the lesser offense of criminally negligent homicide).
We reach this conclusion because the crime of manslaughter requires proof of an element beyond the elements of felony-murder. Unlike the crime of felony-murder, manslaughter requires proof that the defendant acted with a culpable mental state (either intentionally, knowingly, or recklessly) regarding the possibility that their conduct would cause the death of another human being. The crime of felony-murder, on the other hand, only requires proof that the defendant acted with the intent of perpetrating one of the felonies listed in AS 11.41.110(a)(3).
It will often be true that a defendant’s intent to commit one of these listed felonies will be strong evidence that the defendant acted at least recklessly regarding the possibility that someone would die. But this is not invariably so. That is why the drafters of our criminal code rejected the misdemeanor-manslaughter doctrine and, instead, insisted on proof that the defendant acted at least recklessly with regard to the possibility that someone would die as a result of their actions.
Moreover, in these situations, we see no inconsistency between a legislative policy to spare defendants the severe penalties of second-degree murder while, at the same time, subjecting these defendants to the lesser penalties of manslaughter or criminally negligent homicide.
We acknowledge that our manslaughter statute does not expressly call for this result. But as we have explained, the crime of manslaughter is—and traditionally has been—a residual category of unlawful homicide, encompassing the various types of unlawful killings that do not constitute some form of murder.
Thus, for example, no provision of Alaska law expressly states that an intentional homicide committed in the heat of passion is manslaughter. Instead, AS 11.41.115(a) simply declares that heat of passion is a defense to murder. But because an unlawful intentional killing in the heat of passion is not murder, it is manslaughter under AS 11.41.120.
The same principle applies to Pfister’s case. Under our second-degree murder statute, a homicide that results from the commission of a felony does not constitute felony-murder if the person killed was an accomplice to the felony. But because the killing is not murder, it falls within the residual category of manslaughter if the State can prove (1) that the defendant’s conduct was a substantial factor in causing the death, and (2) that the defendant acted at least recklessly with respect to the possibility that someone would die as a result of their actions.
For these reasons, we hold that Pfister could lawfully be convicted of manslaughter for the deaths of his two accomplices.
[…]
Conclusion
Pfister’s two convictions for manslaughter are AFFIRMED[.]
Affirmative Defense to Felony Murder
Defendants also have a limited affirmative defense to felony murder. If the defendant did not actually commit the act that killed the victim, nor had knowledge, or awareness, that the death might occur, the defendant may avoid liability under the felony murder rule. AS 11.41.115(b). As an affirmative defense, the defendant bears the burden of proving each element, including that the defendant “had no reasonable ground to believe that another participant, if any, intended to engage in conduct likely to result in death or serious physical injury.” AS 11.41.115(b)(4).
Figure 9.7 Alaska Criminal Code – Felony Murder Affirmative Defense
Example of Affirmative Defense to Felony Murder
Assume that Sue and Sam dream up a plan to “defraud” a local bank (instead of robbing it like Joe and Jane). Sue works as a teller at the bank. Sam and Sue agree that Sam will come into the bank unarmed and act as a customer. Sam will fake that he has a gun in his pocket, and Sue will give Sam the money, pretending to be scared. Sue agrees not to activate the bank’s silent alarm. Without informing Sue, Sam brings a real gun into the bank, “just in case.” The security guard sees Sue handing Sam large amounts of cash. Suspicious, the security guard begins to approach Sam. Sam notices the guard, frantically pulls out the gun, and shoots the guard, killing him instantly.
In this scenario, Sue may have a valid defense to a second-degree murder charge. Although Sue had the intent to participate in the “representation” robbery, the jury could determine that Sue had neither knowledge nor awareness that Sam had a real gun, or that Sam was likely to engage in conduct likely to result in death or serious physical injury. Thus, it is possible that only Sam would be guilty of second-degree murder under the felony murder rule (because Sam committed first-degree robbery).
Felony Murder Merger Doctrine
The purpose of the felony murder rule is to protect human life and deter defendants from committing dangerous felonies, or failing that, to encourage felons to be extremely careful when committing specific inherently dangerous crimes. See Todd v. State, 884 P.2d 668, 671 (Alaska App. 1994). For this reason, the felony murder rule allows a defendant to be punished for both the underlying felony and the unintentional death. This is true even though it is impossible to commit felony murder without committing the underlying felony. Punishment for both crimes – second-degree murder and the underlying felony – does not violate double jeopardy. See id. at 684.
The exception to this rule is when a defendant breaks into a house with the intent to kill the occupant. Normally, this conduct would constitute both first-degree burglary and second-degree murder (under the felony murder rule), but under the felony murder merger doctrine, the burglary merges with the murder. AS 11.41.115(c). The felony murder rule does not apply. Instead, the defendant may be convicted of intentional murder (first-degree murder) and the underlying burglary if the circumstances warrant it. Similarly, if the defendant breaks into a house with the intent to commit a different crime (like theft), and another person is killed, the defendant may be convicted of both felony murder and the underlying burglary. The felony murder merger doctrine does not apply.
Lack of Concurrence
Recall that under the felony murder rule, a defendant is guilty of murder if the death occurs “in the course of or in furtherance of that crime or in immediate flight from” the underlying felony. AS 11.41.110(3). Thus, the statute necessarily requires a nexus between the felony and the death. The felony and the death must be part of the same continuous criminal transaction. If the death occurs before or after the commission of the felony, the defendant is not guilty of felony murder. Likewise, if the felony occurs after the death, the felony murder rule does not apply. See e.g., Hansen v. State, 845 P.2d 449, 452 (Alaska App. 1993). Under either scenario, there is a lack of concurrence between the volitional act (the death during a felony) and the culpable mental state (the intent to commit the underlying felony).
Felony Occurring After Death
Susan decides to confront her long-time drug dealer, Vince, because she believes that Vince has “shorted” her on numerous prior occasions. Susan meets Vince at his apartment to discuss his poor business practices. No drug deal takes place, but nonetheless, an argument ensues, and Susan pushes Vince down a flight of stairs, in a fit of rage. Vince dies instantly. Susan, convinced that she is going to be arrested, lights a large fire inside the apartment and flees.
In this case, it is unlikely that Susan is guilty of felony murder (although she may be guilty of a different classification of criminal homicide). The scenario suggests that Susan started the fire after the homicide, in an effort to cover up evidence of the crime. The death did not occur during, or in furtherance of, the underlying felony (arson).
Death Occurring After Felony
The issue that more commonly arises is when the death occurs after the felony. The defendant may try to avoid criminal liability by arguing that the underlying felony was completed before the death occurred. Such a defense requires the trier of fact to determine when the felony ended. Some jurisdictions look to whether a defendant has reached a place of temporary safety. The place need not be a formal location like the defendant’s residence; it could simply be a hiding place. See e.g., California v. Wilkins, 295 P.3d 903 (Cal. 2013). Most jurisdictions, however, employ various factors, including the time between the felony and the killing, the distance between the felony and the death, and whether there is evidence of abandonment or renunciation of the underlying felonious objective. See generally,What Constitutes Termination of Felony for Purpose of Felony-Murder Rule, 58 A.L.R.3d 851 (1974). In the end, if the felony and killing are part of one continuous transaction, then the felony murder applies. If the felony and killing are separate and distinct, then the felony murder rule is inapplicable. For example, a defendant was guilty of felony murder when the defendant killed the victim immediately following a sexual assault in an effort to conceal his crime. Conversely, a defendant was not guilty of felony murder when he killed a sexual assault victim after he learned that the victim was going to alert law enforcement of the sexual assault. Compare Montana v. Perry, 505 P.2d 113 (Mont. 1973) with Minnesota v. Murphy, 380 N.W.2d 766 (Minn. 1986).
Exercises
Answer the following questions. Check your answers using the answer key at the end of the chapter.
1. Fred, visiting from Seattle, violently stole a vehicle in the Anchorage downtown parking garage. The victim of the carjacking reported that Fred walked up to him while he was getting in his car, pointed a gun at him, and demanded the car keys. The victim turned over the key and Fred drove away without incident. The following day, Fred struck and killed a pedestrian, while driving the stolen vehicle in downtown Wasilla. Is Fred guilty of second-degree murder under the felony murder rule? Why or why not?
2. Kurt robs a convenience store at gunpoint. As the cashier hands him money out of the cash register, Kurt hears a siren and runs outside, stuffing the money in his pockets. He sees a dark alley and dashes into it. While he crouches there waiting for the police to leave, a homeless person living in the alley taps him on the shoulder. Startled, Kurt spins around and shoots and kills the homeless person. Is this felony murder? Explain your answer. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/09%3A_Criminal_Homicide/9.03%3A_Felony_Murder.txt |
The last two classifications of criminal homicide to explore are manslaughter and criminally negligent homicide. What distinguishes manslaughter and criminally negligent homicide is primarily the applicable culpable mental state. Both manslaughter and criminally negligent homicide are graded lower than murder – manslaughter is classified as a class A felony offense and criminally negligent homicide is a class B felony offense. Both crimes result in substantially less punishment than either first- or second-degree murder.
Manslaughter
Recall that at common law, manslaughter was the unlawful killing without malice or without adequate provocation. Traditionally, manslaughter had two classifications: voluntary and involuntary. Alaska has eliminated these classifications.
Voluntary manslaughter was a killing supported by express malice, but because of a heat of passion, the law negated the murderous intent. As previously discussed, Alaska has incorporated the “voluntary manslaughter” principle into the statutory heat of passion defense. A defendant who unreasonably kills acting in a heat of passion after being seriously provoked by the victim is guilty of manslaughter – not murder – by operation of law. AS 11.41.115(a).
Involuntary manslaughter was considered a reckless killing. In Alaska, a person who recklessly causes the death of another is simply guilty of manslaughter.
Alaska’s manslaughter statute is actually separated into three theories. First, manslaughter is the residual category of criminal homicide. A person is guilty of manslaughter if they intentionally, knowingly, or recklessly cause the death of another person under circumstances not amounting to first- or second-murder. This necessarily means that an unlawful killing that is committed with any of the enumerated culpable mental states will constitute manslaughter, unless the killing is murder. The distinction between voluntary and involuntary manslaughter is unnecessary given this framework.
Second, the crime of manslaughter covers intentional assisted suicide.
Finally, a person is guilty of manslaughter if they engage in drug-trafficking and a person dies as a result of ingesting the purchased drugs.
Figure 9.8 Alaska Criminal Code – Manslaughter
Criminally Negligent Homicide
The lowest classification of criminal homicide is criminally negligent homicide, which is the unlawful killing with criminal negligence. Recall that criminal negligence is a lower culpable mental state than recklessness. The culpable mental states of recklessness and criminal negligence are similar in two respects. Both involve a “substantial and unjustifiable risk that the result will occur” (in the case of homicide, death) and both require a disregard of that risk constituting a “gross deviation from the standard” of conduct or care that “a reasonable person would observe in the situation.” See AS 11.81.900(a)(3)&(4). Reckless, however, requires a “conscious disregard” of that risk – a defendant must subjectively be aware of the risk. The criminally negligent defendant, on the other hand, is unaware of the risk and disregards it unconsciously.
Example of Criminally Negligent Homicide
Pam, an Olympic skeet-shooter, agrees to store her brother’s handgun while he is on vacation. Pam places the handgun in a bottom kitchen cabinet. Pam thinks the gun is unloaded and does not verify or otherwise secure the weapon. Unbeknownst to Pam, the gun is loaded. Tragically, Pam’s 3-year-old daughter finds the handgun, and while manipulating it, shoots and kills herself. Under this scenario, a jury could find that Pam should have checked to ensure that the weapon was unloaded or otherwise secured the weapon out of the reach of a child. If a jury found that Pam’s disregard of the risk was a gross deviation from what a reasonable person would have done, it could find her guilty of criminally negligent homicide.
Vehicular Homicide
Unlike most states, Alaska does not have specific vehicular homicide statutes addressing deaths resulting from drunk driving. Instead, a defendant’s level of intoxication, dangerousness of driving, and criminal history will establish the defendant’s culpable mental state – specifically, extreme recklessness, recklessness, or criminal negligence. Assuming the specific harm caused was death, the defendant’s culpable mental state then dictates the appropriate criminal homicide offense – second-degree murder, manslaughter, or criminally negligent homicide. Generally, only particularly egregious drunk driving behavior satisfies extreme recklessness for second-degree murder. For example, a drunk-driving second-degree murder conviction was upheld when the defendant was highly intoxicated, driving particularly dangerous, and had a long history of drinking and driving. See e.g., Jeffries v. State, 169 P.3d 913 (Alaska 2007). “Typical” drunk-driving homicides are normally classified as manslaughter. The defendant’s intoxication demonstrates recklessness. In scenarios where there is limited evidence of intoxication or particularly accidental deaths, the homicide is classified as criminally negligent homicide. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/09%3A_Criminal_Homicide/9.04%3A_Manslaughter_and_Criminally_Negligent_Homicide.txt |
Summary
Homicide is the killing of one human being by another. Criminal homicide is the unlawful killing of another and is classified as murder, manslaughter, or criminally negligent homicide. Alaska has also criminalized the killing of a fetus. Suicide is usually not criminal, although assisted suicide is manslaughter.
Alaska uses the brain death test for determining death. A person is “alive” if they have either spontaneous respiratory or cardiac function, or have spontaneous brain function, even though respiratory and cardiac function are maintained by artificial means.
Murder is the most serious degree of criminal homicide. Manslaughter and criminally negligent homicide are less serious degrees of criminal homicide. At common law, murder was the unlawful killing of a human being with malice aforethought. Manslaughter was the unlawful killing without malice.
Alaska has abandoned the common law definitions. Instead, Alaska categorizes homicide largely based on the defendant’s culpable mental state at the time of the killing. Murder in the first degree, the most serious criminal offense in Alaska, includes intentional murder. Murder in the second degree includes extremely reckless murders, killings committed with the intent to cause serious physical injury, and felony murder.
Felony murder is a criminal homicide that occurs during the commission or attempted commission of an inherently dangerous felony. The code enumerates which felonies are considered inherently dangerous, including arson, kidnapping, sexual assault, sexual abuse of a minor, burglary, escape, robbery, and drug-trafficking. Each of the enumerated felonies creates a foreseeable risk of death. Under the felony murder rule, accomplices to the underlying felony are equally culpable for any resulting death that occurs, except for deaths of co-felons. A defendant may be guilty of manslaughter for the death of a co-felon. A limited affirmative defense exists, if the defendant did not actually kill the victim, or had no knowledge or awareness that the death might occur.
At common law, manslaughter was divided into voluntary and involuntary manslaughter. In Alaska, manslaughter is a residual category of criminal homicide. Killings that occur during a heat of passion inspired by adequate provocation from the victim constitute manslaughter by operation of law. Manslaughter also includes reckless killings. Criminally negligent homicides are deaths caused by criminal negligence. Alaska does not have specific vehicle homicide statutes.
Key Takeaways
• Homicide is the killing of one human being by another.
• Homicide is not always criminal. For example, capital punishment is homicide, but it is not criminal homicide.
• Alaska uses the brain death test to determine when life ends.
• Although a “person” must be born with spontaneous brain function to be considered alive, Alaska criminalizes homicide of a fetus (except abortion) as murder, manslaughter, or negligent homicide of an unborn child.
• Suicide is not a crime, but assisted suicide is a crime.
• The Alaska Supreme Court has held that it is constitutional to criminalize assisted suicide. A minority of states allow a physician to legally end the life of a terminally ill patient.
• The criminal intent element of murder is important because it distinguishes the different degrees of murder, manslaughter, and criminally negligent homicide.
• An example of a justifiable homicide is a killing by law enforcement to prevent great bodily injury or death. An example of an excusable homicide is a killing perpetrated by a legally insane defendant.
• Although there are several different ways to commit murder in the first-degree in Alaska, the most common is intentional murder.
• Intentional murder does not require proof of premeditation or deliberation (although premeditation or deliberation may evidence intent).
• Premeditated murder is typically a purposeful killing committed after calm planning and reflection.
• The criminal act can help prove that a murder was premeditated. If the killing is carried out in a manner that indicates a strong and calculated desire to bring about the victim’s death, the trier of fact can conclude that the murder was premeditated.
• First-degree murder is the highest classification of murder with the most severe sentencing options. First-degree murder qualifies the defendant for life in prison (99 years).
• Second-degree murder is often defined as any murder committed under circumstances evidencing extreme indifference to life or as murder with the intent to cause serious physical injury.
• Felony murder is included within second-degree murder.
• Second-degree murder is graded lower than first-degree murder but higher than manslaughter.
• The criminal intent element required for felony murder is the intent required for the underlying felony, not a murderous intent.
• If a felony is inherently dangerous to life, the defendant is considered to act with implied malice when there is a resulting death during the felony.
• If more than one defendant commits or attempts to commit a felony, all defendants are guilty of felony murder if a victim is killed during the commission or attempted commission of the felony.
• Co-felons are not criminally responsible for felony murder when someone other than a co-felon kills a co-felon during the commission or attempted commission of a felony.
• An affirmative defense allows a defendant to avoid criminal liability under the felony murder rule if the co-felon did not commit the act of killing and was unaware that there was a risk of death.
• The felony and the death must be part of the same continuous criminal transaction.
• Manslaughter was the unlawful killing without malice or without adequate provocation at common law.
• At common law, voluntary manslaughter was a killing that occurs during an adequately provoked heat of passion. Involuntary manslaughter lacks murder intent altogether.
• Manslaughter includes reckless homicides.
• Criminally negligent homicides are homicides committed with criminal negligence. Criminally negligent homicide is the lowest form of criminal homicide in Alaska.
• Alaska does not have specific vehicular homicide statutes.
Answers to Exercises
From “Homicide”
1. The fundamental difference between homicide and suicide is the identity of the victim. In a homicide, the victim is another human being. In a suicide, the victim is the perpetrator, which is one of the reasons that homicide is often criminal and suicide is not.
From “Murder”
1. Jay has the criminal intent of extreme recklessness. Jay’s conduct in shooting at a tree in a public place might cause someone’s death, which indicates that Jay is indifferent to whether he takes a life. This indifference is a form of manifesting extreme indifference to the value of human life.
2. Johnnie demonstrates a clear intent to kill. The facts indicate a willful, deliberate, premeditated killing. Johnnie planned the killing by putting his gun in the glove compartment and driving by the gas station on Friday night where he suspects Marcus will be present. He killed Marcus in a manner calculated to cause death.
From “Felony Murder”
1. Fred is likely not guilty of second-degree murder. The facts demonstrate that the carjacking was likely complete by the time Fred drove away. The killing of the pedestrian the following day is separated by time and distance.
2. Kurt may not have committed felony murder in this case because he had reached a place of temporary safety. However, arguably, Kurt hiding in an alley is part of the same continuous criminal transaction and was still in the immediate flight thereof when the death occurred. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/09%3A_Criminal_Homicide/9.05%3A_End-Of-Chapter_Material.txt |
This chapter explores some of the most common crimes against the person, sometimes referred to as violent crimes. All violent crimes involve some element of bodily harm or the threat of bodily harm. Violent crime is simply a broad umbrella term used to group criminal conduct that involves the use of force, fear, or physical restraint. Violent crimes, as a classification, include homicide, robbery, assault, sexual assault, kidnapping, and others.
Violent crimes are generally graded based on the resulting harm. The more serious the resulting harm, the more serious the resulting punishment. Even though this is true of most criminal offenses, society tends to punish violent crimes more harshly than crimes against property or crimes against morality and social order. Convictions for violent crimes tend to expose defendants to more collateral consequences (i.e., collateral barriers resulting from a conviction) than other types of criminal convictions. This is especially true of lower-level violent crimes like misdemeanor assault. For example, federal law prohibits a person convicted of domestic violence misdemeanor assault from possessing firearms or ammunition. See e.g., Voisine v. United States, 579 U.S. 686 (2016). Other non-violent misdemeanor offenses generally do not result in such long-lasting, post-conviction consequences.
Assault and Battery
At common law, assault and battery were separate crimes. Battery referred to the use of force against another person, normally requiring physical contact that resulted in injury or offensive touching. Assault, on the other hand, did not require physical contact. Assault was the apprehension of imminent injury. Assault was committed by either (1) attempting to commit a battery, or (2) by intentionally placing another person in fear of a battery.
Both crimes were considered misdemeanors. The crimes were elevated to felonies depending on the defendant’s mens rea or the instrumentality used. For example, shooting a person in the wrist constituted aggravated battery, since the defendant acted with the “intent to maim” and used a “deadly weapon.” Likewise, a defendant pointing a loaded gun at the victim with the intent to frighten the victim, constituted aggravated assault. See generally Wayne R. LaFave, Substantive Criminal Law §16.3(b) (3rd ed. 2018). Although some jurisdictions continue to use such distinctions, the modern trend is to consolidate assault and battery into the single offense classification of “assault.” Alaska has followed this trend.
Modern Assault
Alaska’s assault statutes encompass both the infliction of injury and acts that cause the apprehension of injury. Prior to the adoption of Alaska’s revised criminal code, Alaska’s assault laws included the specific crimes of assault and battery; assault with a dangerous weapon; assault with intent to kill; assault with the intent to rape; assault while armed; aggravated assault; and mayhem. The revised criminal code eliminated these specific assault crimes, and instead grouped assault by degree, based on three factors: (1) the defendant’s culpable mental state; (2) the instrumentality of injury; and (3) the result of the assault.
Thus, in every assault, three questions must be considered:
1. What was the result of the assault – e.g., was someone placed in fear of injury or injured, and if injured, how seriously?
2. What was the instrumentality of the assault – e.g., how was the assault committed? Was the assault committed by words or conduct; was a dangerous instrument used; or was the conduct repeated?
3. What was the culpable mental state of the offender – e.g., did the defendant act intentionally, recklessly, or with criminal negligence?
Assault Grading
Using these three questions, the criminal code grades assault into four different degrees based on severity. Each degree criminalizes a different combination of the circumstances discussed above – the extent of injury, the instrumentality used (if any), and the defendant’s culpable mental state. For example, assault in the first degree is classified as a class A felony offense and covers the most serious assaults – in terms of resulting harm, instrument used, and culpable mental state (see Fig. 10.1 below). Less serious felony assaults are classified as second- and third-degree assaults depending on the circumstances surrounding the offense. Misdemeanor assaults are classified as assault in the fourth degree.
Figure 10.1 Alaska Criminal Code – Assault Statutes
The code also includes the misdemeanor of Reckless Endangerment, which criminalizes recklessly creating a substantial risk of serious physical injury to another person. AS 11.41.250(a).
Extent of Injury (Resulting Harm)
The result of the assault partially dictates what degree of assault was committed. Injury can be viewed on a continuum, with no injury (but the apprehension of injury) at one end, physical injury in the middle, and serious physical injury at the other end.
Physical injury means a physical pain or an impairment of physical condition. AS 11.81.900(b)(48). Put another way, the assaultive act must cause the victim physical suffering or discomfort. The phrase “impairment of physical condition” is undefined in Alaska law, but likely includes minor injuries, like scratches, small cuts, and bruises even if the injury causes no “pain.”[1] Thus, a punch in the mouth will, under most circumstances, constitute a physical injury, but a simple offensive shove that produces no pain or injury will not.
Serious physical injury encompasses more significant injuries. Serious physical injury includes physical injuries that (1) create a substantial risk of death; (2) cause serious and protracted disfigurement; (3) cause protracted impairment of health; (4) cause protracted impairment of bodily organ; or (5) unlawfully terminates a pregnancy. AS 11.74.900(b)(59).
Figure 10.2 Alaska Criminal Code – Serious Physical Injury
Many injuries qualify as serious physical injury, including a broken jaw, disfiguring cut, a stab or gunshot wound. The key aspect is whether the injury caused disfigurement or a prolonged recovery. Both are questions of fact for the jury. Thus, a “broken nose” may or may not constitute serious physical injury. It depends on whether the recovery was protracted or whether the victim suffered a disfigurement.
Notice that serious physical injuries also include physical injuries caused “by an act performed under circumstances that create a substantial risk of death.” AS 11.41.900(b)(57)(A). This definition focuses on the circumstances surrounding the defendant’s actions that caused the physical injury. The victim’s death need not be probable, but the risk of death must be real and substantial. Prompt medical treatment or a victim’s speedy recovery is not the determining factor. Instead, the focus is on the circumstances that caused the injury.
Borozny v. State, 2012 WL 953200 (Alaska App. 2012)
In the following case, the court faced the situation where the victim, although stabbed in the abdomen, fully recovered without significant medical intervention. Does a stab wound to the abdomen constitute “serious physical injury” if the victim was not seriously injured?
2012 WL 953200
Stephen J. BOROZNY, Appellant,
v.
STATE of Alaska, Appellee.
No. A–10634.
March 21, 2012.
MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.
Stephen J. Borozny was convicted by a jury of assault in the first degree for recklessly causing serious physical injury to Francis Katongan by stabbing her with a knife. Borozny argues that the evidence presented at trial was insufficient to show that he caused serious physical injury. He also contends that the State’s argument to the jury about the evidence concerning serious physical injury was improper. We affirm.
Factual and procedural background
On the evening of August 18, 2008, a cabdriver drove three people from the Mush Inn to the Spirits of Alaska liquor store near downtown Anchorage. The party included Borozny and Katongan. When they arrived at the liquor store, Borozny gave Katongan \$50 and asked her to purchase some alcohol. She returned with an eighteen-pack of Budweiser, which she gave to Borozny in the front seat of the cab.
Katongan gave Borozny only \$12 in change from the purchase. This displeased Borozny. He was “shaking and angry.”
Borozny left the front seat of the cab and walked around to the back seat, where Katongan was sitting. Words were exchanged. He then stabbed Katongan in the abdomen with a knife, picked up the beer, and ran off. Katongan remained near the vehicle, holding her stomach on her lower left side.
Katongan called the police. The driver called 911. The driver spent some time following Borozny as he traveled through the nearby Fairview neighborhood. Borozny was soon arrested nearby. The knife was never found. Katongan was transported by ambulance to Alaska Native Medical Center.
The State charged Borozny with assault in the first degree for recklessly causing serious physical injury to Katongan by stabbing her with a knife. “[S]erious physical injury” is defined as “physical injury caused by an act performed under circumstances that create a substantial risk of death….”
In a jury trial conducted by Superior Court Judge Michael Spaan, Borozny did not dispute that he stabbed Katongan. He defended on the ground that the injuries that he caused did not constitute serious physical injury. The jury rejected his argument and found Borozny guilty. Borozny raises the same argument on appeal.
Why we conclude that the jury could find that Borozny caused serious physical injury
The critical evidence on the issue of whether Katongan suffered serious physical injury was presented through the testimony of Dr. Kevin Stange, an experienced trauma surgeon at Alaska Native Medical Center who had treated Katongan. Dr. Stange testified that the knife wound was two centimeters wide and roughly ten centimeters deep. He said the knife entered Katongan’s left abdominal cavity somewhere between her ninth and tenth ribs. Dr. Stange stated that vital organs in the area of the wound included the stomach, colon, and spleen. Injury to any of these, he testified, had the potential to cause serious harm or death. Fortunately, in Katongan’s case, the knife went up toward her heart and lungs rather than down toward her colon and intestines. Although the knife punctured her chest wall, it did not puncture her lung.
Dr. Stange testified that Katongan was fortunate that the knife went in at an angle that missed her vital organs. Although the wound caused Katongan to lose one-third of her blood volume, this was not sufficient to kill her. Dr. Stange acknowledged that a person who had an injury such as Katongan’s had “an appreciable and significant risk of death, absent medical intervention.” He also noted that the same wound received by someone else, who was older or was not in as good shape as Katongan, “could easily kill them by heart attack, stroke, etc.”
Dr. Stange testified that, although the kind of wound that Katongan received could be dangerous and life-threatening, because she was fortunate and the knife did not strike any vital organs, massive medical intervention turned out to be unnecessary. Ultimately, after taking x-rays and CT scans, Katongan was treated by simply monitoring and observation. Katongan’s body was able to heal, and she ultimately made a good recovery.
Borozny argues that because Katongan was able to recover without any substantial medical intervention, he did not cause serious physical injury. But we rejected this view in James v. State. In James, we stated: “It makes little sense to focus exclusively on the victim’s personal ability to tolerate or recover from an injury, without reference to the seriousness of the risk the injury poses at the time of its infliction.” Whether a defendant commits serious physical injury under AS 11.81.900(56)(A) is determined by whether the defendant caused physical injury “by an act performed under circumstances that create a substantial risk of death.” The question is not the nature of the injury, although that could be relevant to demonstrate the circumstances under which the injury was inflicted, but the circumstances themselves. In the present case, according to Dr. Stange’s medical testimony, when Katongan was brought to the hospital after being stabbed, she faced “an appreciable and significant risk of death.” It was only after significant observation that Dr. Stange was able to discover that Katongan would survive. But the fact that Katongan (and by extension, Borozny) was lucky does not change the fact that the wound that he inflicted created a substantial risk of death. We conclude that there was sufficient evidence for the jury to find that Borozny caused serious physical injury.
[…]
Conclusion
The judgment of the superior court is AFFIRMED.
Instrumentality of Injury
Generally speaking, a defendant who causes injury to another, or places another in fear of injury, using a dangerous instrument is guilty of felony assault. The use of a dangerous instrument elevates an otherwise misdemeanor assault to a felony. Dangerous instrument is broadly defined – it includes anything which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury. AS 11.81.900(b)(15).
A beer bottle or frying pan could qualify as a dangerous instrument if a person used them in a manner capable of causing serious injury. For example, hitting someone over the head with a frying pan is capable of causing a “protracted impairment of health” (one of the definitions of serious physical injury). But slamming a frying pan down on the stove – even if done in concert with a threat of harm – would not qualify. The focus is on the circumstances surrounding the instrument’s use.
Konrad v. State, 763 P.2d 1369 (Alaska App. 1988).
Even though the definition of a dangerous instrument is broad, it is not limitless. In the following case, the court addresses whether bare hands can qualify as a “dangerous instrument” under the law. As you read Konrad, notice how the court distinguishes between actual weapons and hypothetical weapons.
763 P.2d 1369
Court of Appeals of Alaska.
George A. KONRAD, Appellant,
v.
STATE of Alaska, Appellee.
No. A–2126.
Nov. 10, 1988.
OPINION
BRYNER, Chief Judge.
George A. Konrad was convicted, following a jury trial, of assault in the third degree [and other felonies]. Konrad appeals, arguing that the trial court erred in failing to dismiss his indictment[.] We affirm Konrad’s [other] convictions, but vacate his conviction for third-degree assault.
BACKGROUND
Konrad was indicted for a series of incidents that occurred during the breakup of his marriage to Luann Konrad. The indictment charged Konrad with third-degree assault for recklessly causing physical injury to Luann Konrad by striking her on the head and ribs with his hands[.]
ASSAULT IN THE THIRD DEGREE
On May 9, 1986, following a heated argument, George Konrad struck Luann Konrad twice with his hands: once on the head and once on the ribs. Luann Konrad experienced abdominal pain following the assault. Several days later a physician determined that the blow to Luann’s midsection had injured her spleen, causing it to bleed into her abdominal cavity. The injury resolved itself without treatment.
Based on the May 9 incident, the state requested the grand jury to charge Konrad with assault in the third degree. The state proceeded under AS 11.41.220(a)(2), which states that “a person commits the crime of assault in the third degree if that person recklessly … causes physical injury to another person by means of a dangerous instrument.” The state’s theory was that Konrad’s hands were dangerous instruments.
After reading the statutory definition of “dangerous instrument” to the grand jury, the prosecutor stated, in relevant part: “I would instruct you at this time that in the state of Alaska hands or feet can be considered a dangerous instrument under the definition that I have given you of a dangerous instrument.” The grand jury returned a true bill.
Prior to trial, Konrad moved to dismiss the third-degree assault charge, challenging the propriety of the prosecutor’s instruction to the grand jury. The superior court denied Konrad’s motion. At trial, Konrad unsuccessfully moved for a judgment of acquittal on the third-degree assault charge, contending that the evidence was insufficient to establish the use of a dangerous instrument. Konrad now renews these arguments on appeal.
The term “dangerous instrument” is defined in AS 11.81.900(b)(11):
(11) “[D]angerous instrument” means any deadly weapon or anything which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury.
“Physical injury” and “serious physical injury” are in turn defined in AS 11.81.900(b)(40) and (50):
(40) “[P]hysical injury” means a physical pain or an impairment of physical condition;
(50) “[S]erious physical injury” means
(A) physical injury caused by an act performed under circumstances that create a substantial risk of death; or
(B) physical injury that causes serious and protracted disfigurement, protracted impairment of health, protracted loss or impairment of the function of a body member or organ, or that unlawfully terminates a pregnancy.
This court has never squarely decided whether a bare hand can be a “dangerous instrument” within the meaning of these provisions. In Wettanen v. State, we held that a bare foot could qualify as a dangerous instrument under certain circumstances. The evidence there established that Wettanen had kicked another person repeatedly about the face and head, inflicting serious physical injuries. Because the state neglected to establish whether Wettanen was shod when he committed the assault, it was necessary to decide if a bare foot could qualify as a dangerous instrument. We concluded that sufficient evidence had been presented at trial to allow a finding that Wettanen’s foot was a dangerous instrument, even if it was unshod. In reaching this conclusion, we expressly declined to decide whether a bare hand could similarly qualify as a dangerous instrument, noting that the cases from other jurisdictions on the issue are in conflict.
Since deciding Wettanen, we have had no occasion to resolve this issue. In at least one case, however, we have assumed that a hand might qualify as a dangerous instrument in some situations.
For the purpose of deciding the present case, we may likewise assume that there is no categorical prohibition against a hand being deemed a dangerous instrument under the definition set forth in AS 11.81.900(b)(11). Our prior cases nevertheless firmly establish that the question of whether a hand qualifies as a dangerous instrument in any given case must be answered by examining the precise manner in which the hand is actually used.
The need to focus on the specific circumstances of each case derives from the definition of “dangerous instrument.” While the statutory definition encompasses “anything” that is capable of causing death or serious physical injury, the express language of the statute requires that an instrument’s potential for causing death or serious physical injury be assessed in light of “the circumstances in which it is used, attempted to be used, or threatened to be used.” AS 11.81.900(b)(11). It is the actual use of the instrument in each case that must be considered, not abstract possibilities for use of the instrument in hypothetical cases.
We emphasized this point in Wettanen, cautioning that “every … blow, even if it causes serious injury, will not automatically be an assault with a dangerous instrument.” We pointed out that the inquiry must focus on the vulnerability of the victim and the specific nature of the assault in each case. In this regard, we emphasized that “the requirement of a dangerous instrument serves to shift the focus of the trier of facts’ attention from the result (physical injuries), which in any given case may have been unforeseeable to the defendant at the time the assault was committed, to the manner in which the assault was committed.”
We elaborated on Wettanen in Carson v. State, […], a case involving an analogous situation. In that case, police officers performing a misdemeanor arrest subdued Carson by kicking him in the groin and unleashing a police dog, which bit Carson on the legs and buttocks until he ceased struggling. At issue was whether the officers’ actions amounted to “deadly force.” The applicable statute defined “deadly force” to include any force used under circumstances that “create a substantial risk of causing death or serious physical injury.”
We found that the evidence in Carson did not support a finding that deadly force had been used. In reaching this conclusion, we emphasized the need to focus on the actual risk of serious physical injury posed in the specific case, rather than on the abstract possibility of serious physical injury under other, hypothetical circumstances. We said, in relevant part:
Although we can certainly conceive of cases in which specific testimony describing a kick to the groin or an attack by a dog would support the inference that a substantial risk of death or serious physical injury was created, we are unwilling to conclude that testimony establishing no more than the unadorned fact of a kick to the groin or an attack by a police dog is per se sufficient to create a jury question as to the use of deadly force. The issue is not one to be resolved in the abstract. There must, at a minimum, be some particularized evidence from which a reasonable juror could conclude that a substantial risk of serious physical injury was actually created in the specific case at bar.
The issue is analogous to one we considered in Wettanen v. State. There, we held that, while any object, including an unshod foot, that was capable of inflicting serious physical injury might qualify under the broad statutory definition of “dangerous instrument,” the actual determination of whether a dangerous instrument was used must be made on a case-by-case basis, based on the totality of the circumstances surrounding the actual use of the object in question.
When read together, Wettanen and Carson stand for the proposition that, before a hand may be deemed a “dangerous instrument,” the state must present particularized evidence from which reasonable jurors could conclude beyond a reasonable doubt that the manner in which the hand was used in the case at issue posed an actual and substantial risk of causing death or serious physical injury, rather than a risk that was merely hypothetical or abstract.
Obviously, whenever serious physical injury does in fact occur, there will be prima facie evidence to support a finding that a dangerous instrument was used. Conversely, when serious physical injury does not occur, other case-specific evidence must be adduced to establish that the risk of such injury was both actual and substantial, even though it did not in fact occur.
The facts of the present case are problematic when viewed in light of this analysis. We consider initially the grand jury proceedings. The state did not contend below, and it does not argue on appeal, that Luann Konrad suffered serious physical injury when Konrad struck her with his hands. In presenting its case to the grand jury, the prosecution instructed that “under Alaska law hands or feet can be considered dangerous instruments.”
The ambiguity of this instruction is troublesome. While it might be taken to indicate that the decision as to whether Konrad’s hands were dangerous instruments was a factual one to be made by the grand jury, it might as readily be taken to indicate that there was no need at all for the grand jury to consider the issue, since it was settled as a matter of Alaska law. In our view, the giving of this instruction raises a serious question as to whether the grand jury in Konrad’s case ever actually determined, as a factual matter, whether Konrad used his hands in a manner capable of inflicting death or serious physical injury.
In any event, even without the ambiguous instruction, we believe that the circumstances of the present case would have been sufficiently unique to require a specific admonition to the grand jury concerning the manner in which it was required to determine whether a dangerous instrument had been used.
We recognize that the grand jury was appropriately instructed on the statutory definitions of “dangerous instrument,” “physical injury,” and “serious physical injury.” Nevertheless, when, as in the present case, the defendant is alleged to have used a dangerous instrument that was not a “deadly weapon” and that did not actually inflict death or serious physical injury, the possibility that the grand jury might decide the instrument’s potential for causing injury as an abstract or hypothetical matter is, in our view, sufficiently great to require that an express instruction be given. The instruction should alert the grand jury to the need for it to find, based on the evidence in the case before it, that the defendant used an instrument in a manner that actually created a substantial risk of death or serious physical injury. In view of the lack of an appropriate clarifying instruction and the ambiguity of the instruction actually given, we conclude that the trial court erred in denying Konrad’s pretrial motion to dismiss the count charging him with assault in the third degree.
[…] As we have already indicated, the state does not allege that the evidence established that Konrad inflicted serious physical injury by striking Luann Konrad with his hands. While Luann suffered internal bleeding from the spleen, the condition healed without treatment within a short period of time. No medical evidence was adduced to establish that Luann’s condition verged on becoming more serious or that a blow to the ribs similar to that inflicted by Konrad actually posed a risk of inflicting more severe injuries to the spleen or to other internal organs.
Apart from Luann Konrad’s testimony that Konrad’s hand was in a fist when he struck her, there is nothing in the record to establish that the manner in which Konrad used his hands was inordinately violent or particularly calculated to inflict serious physical injury. No evidence was offered to suggest that Konrad had received martial arts training or that he was otherwise skilled in using his hands to inflict physical injury.
Other than the fact that Konrad had awakened Luann Konrad shortly before he assaulted her, there was no evidence to suggest that she was especially susceptible to incurring a serious physical injury. Although it can be inferred that Luann would have been better able to ward off Konrad’s blows and to prevent the injuries that she did receive had she not recently been asleep, nothing in the evidence establishes that she was vulnerable to suffering injury more serious than that actually inflicted merely because she had been sleeping and was caught off guard by Konrad’s assault.
In arguing that the evidence was sufficient to support a finding that Konrad’s hands were dangerous instruments, the state notes that, after the assault, Konrad offered to take Luann to the doctor when he got back from work. The state contends that this evidence reflects upon the seriousness of Konrad’s assault and could legitimately be relied on by the jury.
To the extent that Konrad’s offer of assistance betrayed his awareness that he had assaulted Luann Konrad with sufficient force to inflict injuries requiring medical treatment, the state is correct. However, the evidence does nothing to indicate that Konrad believed he had inflicted serious physical injury, as opposed to nonserious physical injury. Consequently, the evidence fails to establish, either directly or inferentially, that his assault created an actual and substantial risk of serious physical injury.
In ruling on the sufficiency of the evidence at trial, we must view the evidence and the inferences arising therefrom in the light most favorable to the state to determine whether reasonable jurors could conclude that the defendant’s guilt was established beyond a reasonable doubt. Applying this standard to the present case, we conclude that insufficient evidence was adduced to support Konrad’s conviction of third-degree assault. In our view, the evidence cannot justify a finding that Konrad’s hands qualified as dangerous instruments. On the record of the present case, a conclusion that Konrad’s hands were capable of causing death or serious physical injury under the circumstances in which they were actually used—that is, that they actually created a substantial risk of death or serious physical injury to Luann Konrad—would be wholly speculative.
Were we to find sufficient evidence in this case to support a conclusion that Konrad’s hands were dangerous instruments, a similar conclusion would be justified in virtually every case involving blows struck with fists that inflicted some physical injury. We conclude that the trial court erred in denying Konrad’s motion for a judgment of acquittal as to the charge of assault in the third degree.
[…]
The conviction for assault in the third degree is VACATED. This case is REMANDED to the superior court, with directions to amend the judgment accordingly.
You be the Judge …
In 2015, Dulier and John Sears got into an argument when they were smoking cigarettes outside the Rendezvous Bar in Juneau. Sears and Dulier had a heated exchange before Sears went back inside.
Later, Sears and another patron went outside again. Dulier, who was still outside, stepped up to Sears, held a flare gun to Sears’s neck, and fired it. A bar patron grabbed Sears by the shoulder just as the flare gun went off, causing Sears to move to the left just before the flare hit him. The flare impacted the front of Sears’s neck, next to his Adam’s apple. The flare ricocheted off Sears’s neck, hit the wall of the bar, and then landed on the bar’s welcome mat, where it sat burning for a moment before another patron kicked it out toward the street. When the officers arrived at the bar, Sears had a “large bloody powder burn” and welt on his neck. After speaking to the police, Sears went to the hospital for treatment. In addition to a bad burn, Sears had a large bruise and a bloody gouge on his neck. He was prescribed antibiotics and a painkiller. After the incident, Sears had a hard time talking, and the inside of his throat was swollen for four or five days.
The prosecution charged Dulier with felony assault for recklessly causing physical injury to Sears “by means of a dangerous instrument.” Based on these facts, do you think there was sufficient evidence that Dulier used a “dangerous instrument” to support an assault conviction? Why or why not? Check your answer at the end of the chapter.
The term dangerous instrument also includes any “deadly weapon.” A deadly weapon includes any knife, axe, club, or explosive. It also includes all firearms, whether loaded or unloaded. The firearm need not be functional to constitute a “deadly weapon.” AS 11.81.900(b)(27). Thus, pointing an unloaded, non-functional pistol at a person in a threatening manner qualifies as felony assault, even though the weapon – factually – is incapable of causing injury.
Manual Strangulation (Hands as a Dangerous Instrument)
Any object, including hands, used to obstruct a person’s airway and breathing, constitutes a per se dangerous instrument. AS 11.81.900(b)(15)(B). Strangulation – aka “sleeper holds”, “chokeholds”, or anything that forcibly compresses a person’s airway – is particularly dangerous. Strangulation is highly lethal; unconsciousness may occur within seconds and death within minutes. Further, in the context of intimate partner violence, past strangulation is highly predictive of future violence. Victims of non-fatal strangulation are more than 7 times more likely to be the victim of homicide. (Glass et al. 2008[2]).
In 2015, in an effort to make it easier to prosecute perpetrators with felony assault who strangle their victims, the Alaska legislature amended the definition of “dangerous instrument” to include “hands, other body parts, or other objects when used to impede normal breathing or circulation of blood by applying pressure on the throat or neck or obstructing the nose or mouth.” AS 11.81.900(b)(15)(B); SLA 2005, ch. 20, §1.
Under this definition, when a perpetrator strangles their victim (most commonly using their hands), the instrumentality used (e.g., hands) will constitute a “dangerous instrument” as a matter of law. The government is not required to prove that the defendant’s hands (or object used) caused a substantial risk of death. In essence, this alternate definition recognizes that when hands or other objects are used to impede a person’s breathing, the perpetrator is effectively using a deadly weapon.
Note that the alternate definition does not change the result of Konrad v. State, 763 P.2d 1369 (Alaska App. 1988), excerpted above. This definition of “dangerous instrument”, adopted nearly twenty years after Konrad, only applies when the defendant uses their hands or other objects to impede the victim’s breathing. AS 11.81.900(b)(15)(B).
Imminent Fear (or lack thereof)
When the victim is injured, the law focuses on the extent of the injury and the instrumentality used. However, both third-degree assault and fourth-degree assault criminalize fear assault – that is, an act that places a person in “fear of imminent” injury. Compare AS 11.41.220(a)(1)(A) and AS 11.41.230(a)(1). If a defendant places a person in fear of immediate physical injury by words or conduct, then the crime is misdemeanor assault. If a defendant places a person in fear of serious physical injury using a dangerous instrument, the crime is elevated to felony assault. This is the difference between threatening to punch someone in the nose and threatening to shoot someone with a gun. The former is a misdemeanor while the latter is a felony.
Two issues arise in fear assault prosecutions. First, the risk of injury must be imminent. Future, uncertain, or conditional threats are insufficient. The defendant must engage in some physical gesture or specific conduct that reflects an immediate ability to inflict harm. See e.g., Lussier v. Alaska, 2021 WL 2453649 (Alaska App. 2021) (citing Coleman v. State, 621 P.2d 869, 876-77 (Alaska 1980)). Second, the defendant must place the victim in fear. The term “fear”, in this context, means the victim was aware of the threat, not that the victim was scared. This is because not all victims are created equal. Some will cower away, afraid of injury, while others will stand up and fight. The Alaska Court of Appeals describes “fear” as follows:
As used in [the assault statute], the word “fear” does not refer to fright, dread, intimidation, panic, or terror. Rather, a person is “placed in fear” of imminent injury if the person reasonably perceives or understands a threat of imminent injury. The victim’s subjective reaction to this perception is irrelevant. It does not matter whether the victim of the assault calmly confronts the danger or quivers in terror. The question is whether the victim perceives the threat.
See Hughes v. State, 56 P.3d 1088, 1090 (Alaska App. 2002).
The victim must perceive the threat and their apprehension of danger must be reasonable. If the victim is unaware of the defendant’s threatening actions or their apprehension was unreasonable, then an assault was not committed. See e.g., Hodge v. State, 2008 WL 2609662 (Alaska App. 2008). For example, an enraged father is not guilty of assault for throwing a hammer at his infant child since the child cannot be aware of the threat. See e.g., Harrod v. Maryland, 499 A.2d 959, 962 (Md. Ct. Spec. App. 1985). See generally Wayne R. LaFave, 2 Substantive Criminal Law § 16.3(b), at 569 (“It is not enough, of course, to intend to scare the other without succeeding; if the other fails to notice the threatened battery, the threatener, not having succeeded in his plan, cannot be held guilty of assault.”).
Although the victim must be aware of the defendant’s threatening actions, the defendant need not purposely cause apprehension (provided the defendant otherwise acts “recklessly”). If a defendant recklessly places a victim in apprehension of injury, even if the defendant is unaware of their own threatening conduct, the defendant is guilty of assault. For example, a drunk driver who nearly strikes a pedestrian, but fortuitously misses the person, is still guilty of felony assault even if the defendant was unaware of the pedestrian. See e.g., State v. Watts, 421 P.2d 124 (Alaska App. 2018).
1. I say minor injuries, like scratches, "likely" constitute physical injuries under Alaska law because the Alaska Court of Appeals has refused to expressly answer the question. See Eaklor v. State, 153 P.3d 367, 370 n.3 (Alaska App. 2007). However, in Eaklor, the Court suggested that such minor injuries would qualify.
2. See Non-Fatal Strangulation Is an Important Risk Factor for Homicide of Women, Glass N., Laughon K., Campbell J., Block C.R., Hanson G., Sharps P.W., Taliaferro E. (2008), Journal of Emergency Medicine, 35 (3), pp. 329-335. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/10%3A_Violent_Crimes_(Crimes_Against_the_Person)/10.01%3A_Assault_%28and_Battery%29.txt |
The crime of stalking addresses a gap left exposed by modern fear assault statutes. Recall that to be guilty of fear assault, the defendant must place the victim in fear of imminent injury. See e.g. AS 11.41.220(a)(1)(A). Stalking criminalizes a pattern of behavior that places another person in fear. Unlike the crime of assault, stalking requires repeated conduct occurring over time. Also, unlike assault, the repeated acts, if viewed in isolation, may appear simply aggravating, annoying, or even harmless. Yet when viewed in context the acts demonstrate a pattern of threatening behavior that places a reasonable person in fear of death or physical injury.
While assault requires evidence of force or the threat of force, stalking contains no such element. Instead, it criminalizes repeated non-consensual contacts that create fear. Since the crime focuses on fear and not injury, law enforcement can intervene early and prevent a future physical attack. In a sense, stalking is an anticipatory crime similar to inchoate offenses.
The crime itself is relatively new; it did not exist at common law. After a series of high-profile stalking homicides in the early 1990s, state legislatures began criminalizing the dangerous conduct associated with obsessive behavior. Today, all 50 states criminalize stalking. Stalking a person across state lines (e.g., interstate stalking) is a federal crime. See 18 USC §2261A. Alaska’s anti-stalking statutes, enacted in 1993, created two degrees of stalking: Stalking in the First Degree (a class C felony) and Stalking in the Second Degree (a class A misdemeanor).
The basic crime of stalking (second-degree stalking) requires a defendant to engage in repeated acts of nonconsensual contact that recklessly places another person in fear for their own physical safety or the safety of a family member. AS 11.41.270. The term nonconsensual contact includes traditional methods of stalking such as following, approaching, confronting in public, or appearing at the victim’s workplace or residence. It also includes other common methods of instilling fear, such as contacting the person using the telephone, sending mail or electronic communication, or delivering an object to the victim’s home. AS 11.41.270(b)(3).
Because the crime of stalking requires the defendant to engage in a course of conduct, the crime necessarily occurs over time. Single, isolated events are insufficient. The defendant must engage in a pattern of behavior. See Cook v. State, 36 P.3d 710 (Alaska App. 2001).
Example of Stalking
Joel and Rebecca were married for 10 years. They mutually separated before formally filing for a divorce. Immediately after the separation, Joel made repeated attempts to reconcile with Rebecca, but she remained adamant in her desire to separate from him. During this period, Joel sent many text messages to Rebecca. Joel would text Rebecca at all hours of the day.
When Rebecca would respond, Joel would accuse her of leaving him for another man. In one telephone call, Joel went so far as to threaten to kill one of Rebecca’s co-workers (because Joel suspected that Rebecca was dating this co-worker).
Joel’s harassment was not limited to telephone calls or text messages. Joel drove by Rebecca’s residence twice when Rebecca was entertaining a female friend for dinner one evening. On another occasion, during a period when Joel was repeatedly calling her house, Rebecca saw someone running out of her yard and down the street. When she went out to check, she observed footprints leading up to her window. Rebecca did not know who made the footprints.
Rebecca attempted simply to ignore Joel. This worked for several weeks. But then Rebecca started dating another man. Joel called Rebecca and left angry messages regarding this relationship.
Joel then began driving by Rebecca’s residence for no apparent reason. To take a much needed break, Rebecca took a week-long vacation out of town. Shortly after she returned from her vacation, Rebecca invited her new boyfriend over for dinner. As soon as the man arrived at her house, her telephone began ringing “off the hook”; it was Joel. Joel demanded to know what Rebecca was doing with a man in her house. Rebecca hung up, but the calls continued until she turned off her phone. Later, when the man was getting ready to leave Rebecca’s home, he discovered that his vehicle had a flat tire.
In this case, Joel is likely guilty of second-degree stalking. Joel engaged in repeated acts of nonconsensual contact. He repeatedly called her, drove by her house, and threatened one of Rebecca’s co-workers. Even though Joel made no explicit threats against Rebecca, Joel’s conduct – in context – would place a reasonable person in fear.
Cyberstalking
Cyberstalking is also criminal. AS 11.41.270(b)(3)(H)-(I). Cyberstalking occurs when a stalker uses the internet and social media as the medium to engage in their stalking behavior; similar to a traditional stalker, but instead of physical surveillance, contact, or intimidation, the stalker uses technology to stalk their victim.
Aggravated stalking
First-degree stalking elevates an otherwise misdemeanor stalking to felony stalking if the defendant commits the crime of stalking along with a defined aggravating, or attendant, circumstance. AS 11.41.260(a). The code provides six circumstances that if present, heighten the risk of death or serious injury to the victim, and thus, increase the defendant’s blameworthiness. See Figure 10.3.
Figure 10.3 Alaska Criminal Code – Stalking in the first degree
Constitutional Challenges
Because stalking criminalizes otherwise blameless activities (if done in isolation), courts narrowly interpret the offense. Stalking is potentially unconstitutional as overbroad (e.g., criminalizing both lawful and unlawful conduct) if expansively interpreted. Recall that the First Amendment protects many forms of speech including uncomfortable speech. A defendant who is expressing ideas in a repeated, offensive, and even scary manner is protected unless such speech falls within one of the narrowly defined exceptions. Individuals also have a constitutional right to travel freely without unnecessary government interference. Conduct normally associated with the crime of stalking may impede that right.
Although individuals have many constitutional protections, the Constitution does not allow individuals to threaten other people. It is for this reason that stalking survives constitutional attack. Stalking requires the defendant to engage in repeated nonconsensual contact that places another person in fear of injury or death – this is a form of assaultive conduct. See Peterson v. State, 930 P.2d 414 (Alaska App. 1996). Stalking, like assault, criminalizes violent and threatening behavior. Such behavior is not constitutionally protected.
That is not to suggest that all nonconsensual contact constitutes stalking. Inadvertently encountering a person in a public place or merely appearing within the victim’s sight is not “contacting” for purposes of the stalking statute even if the person knows the victim will be fearful of the contact. See Cooper v. Cooper, 144 P.3d 451 (Alaska 2006). Nonconsensual contact made for legitimate, lawful purposes is not criminal. SeePeterson, 930 P.2d at 425-26. Likewise, although the victim must perceive the threat of harm, the victim’s fear must be reasonable. See Kenison v. State, 107 P.3d 335 (Alaska App. 2005).
You be the Judge …
A group of skinheads routinely ride the municipal bus. Their appearance, their language, and their demeanor frequently cause other regular bus riders to fear for their safety. The skinheads know that the other bus riders are afraid of them, but they continue to ride the bus, day after day. Have the skinheads committed stalking? Check your answer at the end of the chapter.
Dickie v. State, 282 P.3d 382 (Alaska App. 2012)
As with most criminal law, the stalker’s motivation is irrelevant. While some stalkers may be motivated by jealousy, resentment, or anger, others may be motivated by infatuation. Although the specific stalking behaviors – repeated contact, semi-surreptitious surveillance, unwanted gifts, or implicit threats – may be similar, the stalker’s motivation may differ significantly. In the following case, Dickie v. State, the defendant was motivated by an obsession with his victim and her family. Notice how the court explains that force or coercion is not an essential element of stalking. The focus is not on the overt threats made (or lack thereof), but on whether the victim was reasonably placed in fear.
282 P.3d 382
Court of Appeals of Alaska.
Bruce DICKIE, Appellant,
v.
STATE of Alaska, Appellee.
July 27, 2012.
OPINION
BOLGER, Judge.
Bruce Dickie appeals his conviction for first-degree stalking of a family in Anchorage. Dickie contends that the State’s evidence was legally insufficient to prove that his repeated contacts with the family were “nonconsensual” within the meaning of AS 11.41.270(b)(3)—i.e., that these contacts were “initiated or continued without [the family’s] consent, … or … in disregard of [the family’s] expressed desire that the contact[s] be avoided or discontinued.” In particular, Dickie argues that the State’s evidence in this case was insufficient to prove that he knew that his contacts with the family were contrary to their wishes. We conclude that the State’s evidence, viewed in the light most favorable to the jury’s verdict, was sufficient to establish this element of the offense.
Dickie also argues that the statutory definition of “nonconsensual” is unconstitutionally broad unless we require the State to prove that the unwanted contacts were accompanied by some degree of coercion or force. For the reasons explained in this opinion, we reject this contention.
[…]
Background
The Petersen family resided in a duplex in Anchorage. In May 2009, the Petersens’ eighteen-year-old daughter saw Dickie walking around their house at approximately 9:30 p.m., holding a bag of beer. A short time later, Dickie knocked on the door and asked for someone named Sherry Anson. The daughter informed Dickie that Sherry Anson did not live at that residence. Dickie then left.
About two weeks later, the Petersens found a pizza on their front porch. Another week later, someone left two Starbucks coffee drinks and a bag of deli food from Fred Meyer on the porch. At the end of May, the family left town for Memorial Day weekend and returned to find a can of Pringles potato chips on their porch.
On June 1, the Petersens observed Dickie return to the house and leave another bag of Fred Meyer deli food on the porch. Mr. Petersen was able to stop Dickie in the driveway and ask why he was leaving the food. Dickie stated that he thought his friend, Sherry Anson, lived at the house. Dickie said his name was Bruce, but gave a false last name.
Mr. Petersen informed Dickie that he was scaring his family and that he believed Dickie was stalking them. Mr. Petersen said he would call the police if Dickie returned to their home. Mr. Petersen wrote down Dickie’s license plate number as he drove away.
On June 8, Ms. Petersen was watching a movie when she saw Dickie enter their yard from the woods behind their duplex. Dickie was swaying and appeared to be drunk. Mr. Petersen herded his family upstairs into a bedroom, while Ms. Petersen called 911 on her cell phone. Dickie was crouched down in the yard and holding “a big, silver gun.” He eventually got up and walked out of the yard through a wooded area.
Anchorage police responded to the 911 dispatch and went to Dickie’s home, a short distance from the Petersens’ duplex. Dickie was slurring his speech and had an odor of alcohol about him. Anchorage Police Officer Jonathan Gould performed a field sobriety test that led him to believe Dickie was intoxicated.
Police found two guns and several magazines of ammunition in Dickie’s pants. One of the guns was a Para–Ordnance that had a round of ammunition in the chamber and rounds of ammunition in the magazine. The second gun, a nine-millimeter Beretta, contained rounds in the magazine. Police also found “a very large” loaded Smith and Wesson revolver on Dickie’s couch. Police located three other guns—a loaded .44 Ruger handgun, a 30.06 rifle, and a Blissfield shotgun—in Dickie’s bedroom.
Dickie was indicted on one count of third-degree misconduct involving weapons, one count of first-degree stalking, and one count of first-degree criminal trespass. After the State presented its case at trial, Dickie moved for a judgment of acquittal on the stalking charge. Dickie argued that the State failed to prove that he engaged in a course of conduct that placed the Petersens in fear of death or physical injury. Superior Court Judge Philip R. Volland denied Dickie’s motion. The jury found Dickie guilty of all three charges, and he now appeals.
Discussion
Dickie argues that the court erred in denying his motion for judgment of acquittal because the State failed to show that Dickie made repeated, nonconsensual contacts with the Petersens as necessary to satisfy the stalking statute.
[…]
A person commits the crime of stalking when the person “knowingly engages in a course of conduct that recklessly places another person in fear of death or physical injury, or in fear of the death or physical injury of a family member.” The statute defines the phrase “course of conduct” as “repeated acts of nonconsensual contact involving the victim or a family member.” “[N]onconsensual contact” is defined as “any contact with another person that is initiated or continued without that person’s consent, that is beyond the scope of the consent provided by that person, or that is in disregard of that person’s expressed desire that the contact be avoided or discontinued.” Such contacts include “appearing within the sight of that person”; “entering onto or remaining on property owned, leased, or occupied by that person”; and “placing an object on, or delivering an object to, property owned, leased, or occupied by that person.”
Dickie argues on appeal that his conduct does not fall within the definition of stalking because his conduct does not meet the definition of “nonconsensual contact.” Dickie argues that we should require an element of coercion or force as part of the phrase “without that person’s consent” to address potential constitutional problems with the stalking statute. Because these claims raise questions of statutory interpretation, our goal is to determine the intent of the legislature and to implement that intent.
In Petersen v. State, we noted that the phrase “without that person’s consent” appears to cover all contacts that are not expressly authorized beforehand. But we noted that this broad coverage is tempered by the other elements of the statute: “To establish the crime of stalking, the government must prove that the defendant knowingly engaged in repeated acts of nonconsensual contact, the government must prove that these nonconsensual contacts placed another person in fear of injury or death, and the government must prove that the defendant acted with reckless disregard for this result.” Because of these elements, we held that the stalking statutes do not criminalize nonconsensual contacts made for “legitimate purposes, even when the defendant knows that the person contacted may (or will) unreasonably perceive the contact as threatening.”
Under the facts of this case, we likewise conclude that the requirements of the stalking statute pass constitutional muster even if we do not require the prosecution to show an element of coercion or force as part of the proof that the defendant’s course of conduct against the victim was “without that person’s consent.”
In the stalking statute, the legislature did not provide a statutory definition for the phrase “without that person’s consent” or for the word “consent.” The word consent is generally defined as “[a]greement, approval, or permission as to some act or purpose.” “Without consent” then refers to the lack of agreement, approval, or permission.
[…]
Dickie does not point to any legislative history demonstrating that the legislature intended to require force or coercion where the defendant initiates contact without the victim’s consent. Had the legislature intended to require an element of coercion or force, the legislature could have included a statutory definition similar to the statutory definitions in the sexual offense, kidnapping, custodial interference, and human trafficking statutes. The lack of a similar definition in the stalking statute appears to indicate that the legislature did not intend to require force or coercion as part of the definition of nonconsensual contact.
We now turn to the evidence in this case. When we examine the sufficiency of the evidence to support a conviction, we view “the evidence in the light most favorable to the state and [ask] whether reasonable jurors could conclude that the accused’s guilt was established beyond a reasonable doubt.” In this case, the evidence indicates that the first time Dickie arrived at the Petersens’ residence, Dickie knocked on the door and asked for Sherry Anson. The daughter informed Dickie during that first encounter that “nobody lives here by that name.” From that point forward, Dickie was on notice that Sherry Anson was not present at that residence and that his continuing contacts with the Petersens were without their consent.
Dickie then repeatedly stopped by the house and left food without attempting to contact the Petersens. When Mr. Petersen confronted Dickie, he gave a false name. Dickie’s conduct suggested that he knew he did not have the Petersens’ consent, that he possibly knew his conduct was criminal, and that he felt the need to operate with some degree of secrecy. Then, after Mr. Petersen told Dickie not to come back, Dickie returned to the Petersens’ house with a gun. A juror could reasonably conclude that Dickie knew that his contacts with the Petersens were without their consent.
[…]
Conclusion
We AFFIRM the superior court’s judgment.
Even though the type of stalking in Dickie v. State is markedly different from those situations where the stalker is an estranged lover with a prior history of abuse, neither is less dangerous. Stalking, no matter the motivation, is a serious and dangerous crime.
The more you know …
For more information about stalking, steps victims can take, and available resources, the following resources are available | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/10%3A_Violent_Crimes_(Crimes_Against_the_Person)/10.02%3A_Stalking.txt |
Robbery is the forcible taking of property from another. At common law, robbery was considered an aggravated theft crime. Modern criminal codes treat robbery as a crime of violence. Alaska has adopted this view. Robbery is neither a crime against property, nor an aggravated theft. Robbery is a crime of violence. It protects innocent persons from physical harm – the same societal interests as assault. See Marker v. State, 692 P.2d 977 (Alaska App. 1984). Recall that robbery is an inherently dangerous felony under the felony murder rule for second-degree murder. AS 11.41.110(a)(2).
In Alaska, robbery is classified as either first- or second-degree robbery. Second-degree robbery contains the basic elements of the crime; the crime is elevated to first-degree robbery if certain special circumstances (aggravating factors) are present.
Figure 10.4 Alaska Criminal Code – Second-Degree Robbery
Example of Second-Degree Robbery
Collins decides he needs money, but does not want to hurt anyone. Collins decides to take money from the local tanning salon. Collins enters the tanning salon around 10:00 in the evening, just before the salon’s closing time. At that time, there was one employee on duty: a young woman named Tammy. Collins poses as a potential customer and asks Tammy to show him around the facility. She does so, and then Collins leaves. A little later, the salon’s last customer leaves. Soon thereafter, Collins re-enters the salon. He immediately walks behind the service counter and stands next to Tammy. Collins forces T.M.’s hands down on the counter. At the same time, Collins calmly asks Tammy where the money is. Tammy opens the cash register. Collins takes the money and leaves.
Under this scenario, Collins has likely committed the crime of second-degree robbery. Collins used force against Tammy when he took control of her hands. See e.g., Collins v. State, 2018 WL 2363462 (Alaska App. 2018).
First-degree robbery requires special circumstances to be present – such as the defendant being armed with a weapon or causing serious physical injury during the robbery. Note that the defendant need not actually be armed. First-degree robbery also encompasses the representation that the defendant is armed. Thus, all “armed” robberies – regardless of whether the defendant actually possessed a weapon – constitute first-degree robbery. The robbery statute focuses on the dangers associated with the use (or threat) of force during the theft.
Figure 10.5 Alaska Criminal Code – First-Degree Robbery
Unsuccessful Robberies
Although we generally focus on successful robberies, a defendant need not be successful to be guilty of robbery. A defendant can be convicted of robbery even if it turns out that, unbeknownst to the defendant, the victim had an “empty pocket” – that is, the victim did not possess the property being sought. The robbery statutes criminalize unsuccessful attempts to take property to the same extent as successful takings. That is not to say a defendant cannot also commit the crime of attempted robbery, but once the defendant uses force, a completed robbery has occurred, regardless of whether the taking was successful. See Beatty v. State, 52 P.3d 752 (Alaska App. 2002). A defendant commits attempted robbery if the defendant takes a substantial step towards the commission of the offense, but prior to the use of force.
Finally, the force used need not be directed at the property owner. A robbery is committed, not only when the defendant uses force upon the person who possesses the property, but whenever a defendant uses force upon any person with the intent to accomplish the theft. See McGrew v. State, 872 P.2d 625 (Alaska App. 1994). For example, if a couple is “mugged” in a dark alley, the defendant is guilty of robbery if he uses force against one person to cause the other person to surrender the property.
Purse Snatching is Not Robbery
Some thefts may involve incidental or minimal force. It is not uncommon that a thief will use “force” to effectuate a theft. For example, a pickpocket may intentionally bump into a victim in an effort to distract the victim from a surreptitious theft. When the force used is truly incidental, there is no robbery. To constitute a robbery, the struggle must be something beyond a “sudden” theft. Purse-snatching may not be robbery depending on the force (or lack thereof) used.
The line between robbery and [theft] from the person … is not always easy to draw. The “snatching” cases, for instance, have given rise to some disputes. The great weight of authority, however, supports the view that there is not sufficient force to constitute robbery [if] … the thief snatches property from the owner’s grasp so suddenly that the owner cannot offer any resistance to the taking. On the other hand, when the owner, aware of an impending snatching, resists it, or when[ ] the thief’s first attempt … to separate the owner from his property [is ineffective and] a struggle … is necessary before the thief can get possession [of the property], there is enough force to make the taking robbery.
See Butts v. State, 53 P.3d 609, 612-13 (Alaska App. 2002) abrogated on other grounds by Timothy v. State, 90 P.3d 177 (Alaska App. 2004) (citing 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 8.11(d)(1), p. 445 (1986) (internal citation omitted)). We explore theft, including theft from the person, in more detail in the next chapter.
If a person uses force to retain property after a theft, the defendant is guilty of robbery. See Ward v. State, 120 P.3d 204 (Alaska App. 2005). A defendant who commits a shoplift and then assaults the security guard in an effort to keep the stolen property commits a robbery. In other words, robbery does not require the force to be used prior to, or while taking the property, but includes force used after the theft.
You be the Judge …
In the early morning hours, Kenneth Moto entered Jacob Vesotski’s home near downtown Anchorage. Vesotski awoke to find a man fumbling with the computer on his desk, which was ten to twelve feet from his bed.
Moto walked toward where Vesotski lay in bed and told him to go back to sleep, “otherwise he was going to kill [him].” When Vesotski realized he was being robbed, he decided to encourage Moto to take whatever he wanted and leave the house. Vesotski unplugged the computer and carried it out of the bedroom to the front door.
Vesotski handed Moto the computer and pushed him out the door. Moto told Vesotski that Moto would kill him if he reported the incident to the police. Moto then left the house with Vesotski’s computer. The police apprehended Moto as he was attempting to enter a neighbor’s house. The police recovered Vesotski’s computer.
Did Moto commit first-degree robbery, second-degree robbery, or simply an aggravated theft offense? Check your answer at the end of the chapter.
Right to Recapture/Reclaim of Property (Self-Help)
Recall from Chapter 7, a person may be justified in using nondeadly force to recapture property if the property is taken from the victim and the victim reacts immediately. Thus, a theft victim may chase someone who stole personal property and take the item back. See Kone v. State, 2018 WL 573339 (Alaska App. 2018). However, the use of force to reclaim property must be immediate. Any appreciable delay converts the use of force into the crime of robbery even if the person is recovering their own property. Using force to reclaim property is only permitted in limited circumstances. Once the theft has been completed, the law requires the victim to use legal methods to reclaim property. Neither force, nor the threat of force, are permitted.
Whitescarver v. State, 962 P.2d 192 (Alaska App 1998)
In the following case, Whitescarver v. State, 962 P.2d 192 (Alaska App 1998), the court explains why a claim-of-right defense is not permitted. As you read Whitescarver, ask yourself if the victim of a theft should be required to invoke legal process to reclaim their own property.
962 P.2d 192
Court of Appeals of Alaska.
Jeffrey Scott WHITESCARVER, Appellant,
v.
STATE of Alaska, Appellee.
No. A–6428.
June 19, 1998.
OPINION
MANNHEIMER, Judge.
This case requires us to decide whether a person may defeat a charge of robbery by showing (or, more precisely, by establishing a reasonable possibility) that they assaulted the victim in an attempt to recover property that rightfully belonged to them. We hold that the answer is “no”: a defendant’s claim of ownership does not justify or excuse an attempt to recover property by assault.
On November 29, 1995, at around 1:30 in the morning, 18–year–old Jeffrey Scott Whitescarver and four of his friends paid a visit to the home of his 64–year–old grandmother, Thelma Whitescarver. Thelma Whitescarver had adopted Jeffrey, and in her capacity as Jeffrey’s adoptive mother, she had applied for and received his Alaska Permanent Fund dividend check. Jeffrey Whitescarver came to his grandmother’s house in the middle of the night because he wished to take personal possession of this dividend money.
Whitescarver’s teenage cousin, Brian Leigh, answered the door. Whitescarver falsely told Leigh that he had locked himself out of his apartment; he asked if he could come in and warm up. Whitescarver entered the house, followed by his companions. One of these companions was holding a shotgun. After they were inside the house, Whitescarver’s companion cocked the shotgun, and then Whitescarver announced that he wanted his Permanent Fund dividend money. Leigh told Whitescarver that he did not have Whitescarver’s money.
Whitescarver and his friends then accompanied Leigh downstairs, so that Leigh could awaken Whitescarver’s grandmother. When Thelma Whitescarver had been roused, Whitescarver repeated his demand for his Permanent Fund dividend money. During the ensuing argument, Whitescarver’s grandmother told him that she did not have access to his money in the middle of the night; she urged Whitescarver to return the next day, during business hours. Whitescarver would not be put off; he told his grandmother that he had waited long enough for his money, and he wanted the money then and there. During this entire argument, one of Whitescarver’s friends stood watch at the door to the room, holding the shotgun.
Whitescarver broke off arguing with his grandmother and conferred with his friends in the hallway. Following this conference, Whitescarver decided he would look for his money in an unlocked safe in the closet. However, he found only papers in the safe.
Whitescarver and his companions conferred again about whether they should “rip off what they could get” from his grandmother’s house. Whitescarver and his friends also discussed what should be done with Whitescarver’s grandmother and cousin. Eventually, Whitescarver and his friends decided to leave his grandmother’s house. As they backed out of the room, Whitescarver’s friend kept the shotgun pointed at Thelma Whitescarver and Brian Leigh. On their way out of the house, Whitescarver or one of his friends stole Thelma Whitescarver’s purse. The purse was later recovered with nothing missing from it.
Whitescarver was indicted on two counts of first-degree robbery (robbery committed while armed with a deadly weapon), AS 11.41.500(a)(1). One count named Thelma Whitescarver as the victim; the other count named Brian Leigh. At his trial, Whitescarver was convicted as charged on the count involving his grandmother. With regard to the count involving his cousin, the jury convicted Whitescarver of the lesser included offense of third-degree assault, AS 11.41.220(a)(1)(A).
Whitescarver’s primary contention on appeal is that the trial judge should have instructed the jury to acquit Whitescarver if they found a reasonable possibility that his act of robbing his grandmother and assaulting his cousin was done for the purpose of recovering property that he honestly believed belonged to him (the money from his Alaska Permanent Fund dividend).
In support of this argument, Whitescarver’s opening brief cites various common-law authorities and a few Alaska cases that discuss issues of peripheral relevance. It is obvious that Whitescarver’s appellate attorney studiously avoided discussing (or even citing) the Alaska case most directly on point, Woodward v. State, 855 P.2d 423 (Alaska App.1993).
[…]
For purposes of analyzing Whitescarver’s case, robbery is essentially an aggravated form of the type of extortion discussed in Woodward —extortion committed by a threat to inflict physical injury. Both offenses involve an attempt, by threat of injury, to induce another person to part with property. If the defendant’s intent is to take property from the victim’s immediate presence and control, and if the threat is of imminent injury, then the defendant’s conduct will constitute robbery. If these two aggravating factors are not present (for instance, if the threat is to inflict injury at some future time), then the defendant’s conduct will constitute extortion.
Viewed in this light, it is evident that there is no “claim of right” defense to robbery—for if, as we recognized in Woodward, the legislature affirmatively manifested its intention to prohibit this defense in cases of extortion by threat of future injury, it is inconceivable that the legislature intended to allow the defense in the more aggravated circumstances of robbery.
Whitescarver attempts to avoid this result by arguing that he had a good-faith belief that his Permanent Fund dividend check was not “property of another”—that he should not be deemed guilty of robbery because he honestly believed that he alone was entitled to the check. However, the crime of robbery does not require proof that the property taken from the victim was “property of another”. As we noted in Woodward, the statutory definition of robbery, AS 11.41.510(a), “[does] not require the taking of ‘property of another’, but only the taking of ‘property’.”
The legislature’s decision to define robbery in terms of “property” rather than the more restrictive “property of another” appears to stem from an explicit policy decision made by the drafters of the Criminal Code. They rejected the common-law view that robbery was “an aggravated form of theft”, and they instead decided to place primary emphasis on “the physical danger to the victim and his difficulty protecting himself from sudden attacks against his person”. The drafters of the Code specifically stated that their definition of robbery was intended to “emphasize[ ] the person, rather than the property, aspects of the offense”.
In other words, even if Whitescarver honestly believed that his grandmother was unlawfully withholding his dividend check from him, Alaska law would not allow Whitescarver to enter his grandmother’s home with a firearm, threaten her with injury unless she surrendered the dividend check, then hold her at bay with the weapon while he examined the contents of her safe and carried off her purse for later inspection. These acts constituted robbery, regardless of who was entitled to possession of the dividend check. Judge Andrews properly refused to instruct the jury on Whitescarver’s proposed “claim of right” defense.
[…]
The judgement of the superior court is AFFIRMED.
Extortion
All states and the federal government criminalize extortion, sometimes called blackmail. A defendant commits the crime of extortion if they obtain the property of another by threatening future physical or reputational harm unless the victim surrenders property. AS 11.41.520. If the defendant threatens immediate physical harm to obtain property (as opposed to future harm), the defendant is guilty of robbery, not extortion.
Reputational harm includes a broad range of threats to a person’s reputation. Specifically, extortion criminalizes threats (1) accusing a person of a criminal offense; (2) exposing confidential information tending to subject any person to hatred, contempt, or ridicule; (3) impairing a person’s credit or business repute; (4) withholding action as a public official; (5) bringing about a strike or boycott; or (6) refusing to testify. To constitute extortion, the motive for the defendant’s threat must be to make someone relinquish property. Note that some of these acts could be legal if not connected with the intent to obtain someone else’s property. But if the victim performs the acts because of the defendant’s threat with the intent to obtain property, then the defendant has committed the crime of extortion.
Coercion
The crime of coercion is essentially a lesser degree of extortion. Coercion prohibits the threat of force against a person to do or abstain from doing an act the victim has a legal right to do or not do. AS 11.41.530. Coercion differs from extortion and robbery, however, in that the defendant’s motive in making the threat is not theft, but rather a more general purpose to compel the victim to engage or abstain in a legal right.
Thus, the crime of coercion applies to a much greater range of motives than either robbery or extortion. For example, a person commits the crime of coercion when the person uses threats to coerce someone into signing a child custody agreement, dropping a lawsuit, or voting for or against a particular candidate or ballot proposition.
Extortion and coercion, like robbery, are crimes of violence. Notice how all three crimes focus on the use, or threat, of force to accomplish the defendant’s goal. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/10%3A_Violent_Crimes_(Crimes_Against_the_Person)/10.03%3A_Robbery_Extortion_and_Coercion.txt |
Kidnapping criminalizes intentional nonconsensual restraint of another person. At common law, kidnapping was considered a relatively minor offense – it was a misdemeanor. Common law kidnapping was simply the unlawful confinement and carrying away of another person. The actus reas was twofold: (1) the defendant had to confine the person; and (2) the defendant had to transport the person, an act called asportation.See generally, Wayne R. LaFave, Substantive Criminal Law §18.1(a) (3rd ed. 2018). Common law treated kidnapping as a peripheral or tangential criminal offense – a means to an end. Modern criminal codes have expanded on the common law definition, both in terms of conduct and severity to focus on the dangers inherent in confining or transporting someone against their will. Kidnapping is no longer a peripheral crime.
Alaska defines kidnapping broadly. To be guilty of kidnapping, the defendant must restrain the victim with the specific intent to achieve a specific purpose. AS 11.41.300. Specifically, the defendant must intend to restrain the person for the purpose of (1) obtaining a ransom or payment; (2) using the person as a shield or hostage; (3) inflicting injury or sexual violence on the person; (4) interfering with an official government action; or (5) facilitating the commission of a felony. Further, Alaska has broadened the term “restraint”. Restraint means either restricting a person’s movement without their consent or moving the victim against their will, not both. AS 11.41.370 (3). Notice how at common law both confinement and asportation were required.
Although Alaska’s definition of restraint is broad, it is not without limits. To support a kidnapping conviction, the defendant’s restraint cannot be merely incidental to the target crime. Kidnapping requires substantial restraint. Thus, holding a person at gunpoint during a robbery will not be elevated to kidnapping even though the person’s movements are restricted. The defendant’s restraint of the victim must exceed what is necessary – either temporally or spatially – to commit the target crime. As described in the commentary to the Alaska criminal code revision,
[A] defendant who forces a victim who is jogging along a bike path into woods a few feet from the bike path in order to commit a sexual assault has not committed kidnapping. The “restraint” of the victim was too closely related to the sexual assault, both in time and the degree of movement, to qualify as a separate crime. However, if the victim was forced into the defendant’s car and then driven a block to a nearby deserted house and sexually assaulted, or sexually assaulted while his accomplice was driving the car, kidnapping has occurred.
See Alam v. State, 776 P.2d 345, 349 (Alaska App. 1989) (internal citations omitted).
As you can see, the line between “incidental” restraint and sufficient restraint is fuzzy. Courts and juries evaluate several factors in making their determination, including,
1. how long the victim was restrained;
2. if the victim was moved, how far the victim was moved and where the victim was taken;
3. whether, under the facts, the restraint exceeded what was necessary for the commission of the defendant’s target crime;
4. whether the restraint significantly increased the risk of harm to the victim beyond the risk of harm inherent in the target crime itself; and
5. whether the restraint had some independent purpose – i.e., whether the restraint made it significantly easier for the defendant to commit the target crime or made it significantly easier for the defendant to escape detection.
See Hurd v. State, 22 P.3d 12 (Alaska 2001).
Example of Incidental Restraint
Joseph breaks into Abby’s home and sees Abby sitting on the couch. Due to the layout of the house, the couch is in front of a large picture window, in full view of the street and sidewalk. To avoid detection, Joseph grabs Abby off the living room couch and drags her into the bedroom to sexually assault her. Joseph has probably not committed the crime of kidnapping. Joseph forcibly restrained Abby and moved her into the bedroom without her consent, but her movement from the couch to the bedroom appears to be incidental to the target crime of sexual assault.
Example of Sufficient Restraint
Let’s change the example with Joseph and Abby. Assume that after Joseph breaks into Abby’s home, he drags her out of the house, stuffs her into the trunk of his car, and then drives 50 miles to a deserted river where he sexually assaults her. Joseph has committed the crime of kidnapping (in addition to a host of other crimes). The restraint and movement of Abby were beyond what was necessary to commit the target crime. Abby was restrained in the trunk of a car, moved over 50 miles, and the restraint made it substantially easier for Joseph to commit the target crime.
Penalty
Because of the significant dangers associated with kidnapping, modern criminal codes view kidnapping as a very serious offense. All states impose harsh penalties for kidnapping, including life or 99-year sentences. Alaska is no different. In Alaska, kidnapping is an unclassified felony offense (the most serious classification), punishable by up to 99 years in prison.
Custodial Interference
The Legislature has largely removed child custody disputes from the definition of kidnapping. To eliminate kidnapping charges from child custody disputes, the Legislature has enacted the crime of custodial interference. Custodial interference is designed to protect the person who has lawful custody and control of a child. The willingness of the child is irrelevant. To commit the crime of custodial interference the defendant must be a relative of the child (or incompetent person) who knows that he or she has no legal right to take or keep the child from the lawful custodian. Lawful custodian includes state institutions as well as parents and guardians. If the defendant intends to hold the child for a protracted period of time and causes the child to be taken outside Alaska, the crime is custodial interference in the first degree, a class C felony. If the child is not taken out of state, the crime is custodial interference in the second degree, a class A misdemeanor.
Note that the offense focuses on a substantial interruption in the custody arrangement. Custodial interference does not deal with the situation where the non-custodial parent merely fails to comply with a custody order when there is no intent to hold the child for a protracted period.
Exercise
Answer the following question. Check your answer at the end of the chapter.
1. Coby is in the process of robbing a bank. When a security guard threatens to shoot Coby, he grabs a customer in the bank and holds a knife to her throat. Coby thereafter demands a getaway vehicle and fifty thousand dollars in cash in exchange for the hostage’s release. Has Coby committed kidnapping? Why or why not? | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/10%3A_Violent_Crimes_(Crimes_Against_the_Person)/10.04%3A_Kidnapping.txt |
Robert Henderson
Alaska has a long, significant, and well-documented problem with sexual violence. Alaska frequently has one of the worst rates of sexual assault in the nation. Some simple statistics put the problem in context. According to the 2020 Alaska Victimization Survey, more than one-third of women in Alaska have experienced sexual assault in their lifetime (40.5%), compared to less than one-fifth of women nationwide. Alaska Native women are disproportionately affected by sexual violence. In 2019, among felony-level sex offense cases reported to Alaska law enforcement, Alaska Native women comprised 50.4% of all victims. See Lisa Purinton, 2019 Felony Level Sex Offenses: Crime in Alaska Supplemental Report (2019). Given the epidemic nature of sexual violence in Alaska, the Alaska legislature is frequently changing the laws surrounding sex offenses. This chapter is not intended to be a comprehensive explanation of Alaska’s sex offenses. Instead, this chapter explores the origins of the crime of rape, subsequent reforms, and the current law. To be clear, the debate surrounding how to appropriately criminalize certain sexual acts – both wanted and unwanted – is far from over. It continues today.
Although Alaska has eliminated antiquated references to the crimes of rape, sodomy, and statutory rape, to fully understand the complexity of the various issues surrounding sex offenses, one must first explore the origins of rape, including what acts were and what acts were not criminalized.
Common Law Rape
For centuries, rape was punishable by death. Rape was “the unlawful carnal knowledge of a woman by a man forcibly and against her will.” See Rape, Black’s Law Dictionary (6th ed. 1990). At common law, carnal knowledge was the penetration of the female sex organ by the male organ. Thus, rape was limited to sexual penetration. The law did not treat sexual contact – nonconsensual touching – as rape. See Wayne R. LaFave, Substantive Criminal Law, §17.2 (3rd ed. 2018). Further, a husband could not be convicted of rape by forcing his wife to engage in sexual intercourse. Spousal rape was not a sexual offense. See id. at §17.4(d).
These were not the only limitations with common law rape. Only a man could commit rape. Women were incapable of committing the crime. Likewise, a man could not be the victim of rape. Same-sex sexual assault was not rape. The crime of sodomy was the penetration of the male anus by another man. But sodomy was condemned and criminalized irrespective of consent because of religious and moral beliefs deeming it a “crime against nature.” See e.g., Harris v. State, 457 P.2d 638 (Alaska 1969).
Modern Trends – Sexual Assault
During the 1970s, many states began to update their antiquated rape statutes. Alaska followed suit. Before the enactment of Alaska’s Revised Criminal Code, Alaska largely tracked the common law definition. The Revised Criminal Code eliminated several outdated terms, concepts, and limitations. The majority of Alaska sex offenses are now categorized as either sexual assault or sexual abuse of a minor. Sexual assault typically refers to criminal conduct against an adult; sexual abuse of a minor typically refers to criminal conduct against a minor. Although modern sex offenses depart from the common law in important ways, you will see the law’s historical roots throughout.
The modern criminal code recognizes that sexual violence need not be sexually motivated. All sex offenses are classified as crimes that violate an individual’s personal autonomy. The sexual act – be it genital penetration, fellatio, or cunnilingus – does not require sexual stimulation, sexual satisfaction, or ejaculation. See Beltz v. State, 980P.2d 474 (Alaska App. 1997). All sex offenses focus on the unwanted sexual activity, not the defendant’s motive for engaging in the activity. Remember that motive is never an element of a criminal offense even though it is frequently helpful in explaining the defendant’s criminal conduct.
The basic purpose of both Sexual Assault and Sexual Abuse of a Minor statutes is to protect victims from offensive and coerced intimacy. Whether charged as sexual assault or sexual abuse of a minor, each offensive act is a violation of the victim’s dignity, personal freedom, and bodily integrity. See Johnson v. State, 328 P.3d 77, 89 (Alaska 2014). Each offensive act constitutes a separate offense.
Alaska’s two general classifications – sexual assault and sexual abuse of a minor – are separately graded based on severity. The code includes four degrees of sexual assault and four degrees of sexual abuse of a minor.
Sexual Assault
The keys to understanding the different degrees of sexual assault are to understand the necessary mens rea of the offense, the different actus rei involved (“without consent,” “sexual penetration,” and “sexual contact”), and the different aggravating circumstances (“incapacitation,” “force,” and “mentally incapable”). As a general rule, assaults involving sexual penetration are graded higher than assaults involving sexual contact. Aggravating circumstances tend to elevate the offense. For example, sexual assault in the second degree criminalizes aggravated sexual contact, but also “simple” sexual penetration without consent. See Fig 10.6.
Figure 10.6 Alaska Criminal Code – Sexual Assault in the Second Degree (AS 11.41.420)
Mens Rea of Sexual Assault
At common law, rape was a specific intent crime. The government was required to prove that the defendant intentionally engaged in sexual intercourse without the victim’s consent. Under current law, the defendant need not act intentionally but instead must knowingly engage in the sexual act with reckless disregard for the victim’s lack of consent. AS 11.81.610(b). The test for recklessness is a subjective one – the defendant must actually be aware of, and consciously disregard, the victim’s consent. In the eyes of the Alaska Court of Appeals, this rule protects a “defendant against conviction for first-degree sexual assault where the circumstances regarding consent are ambiguous at the time he has intercourse with the complaining witness.” See Reynolds v. State, 664 P.2d 621, 625 (1983). Put another way, the question is whether the defendant understood the victim’s expression of consent (either by words or action), and if consent was not given, whether the defendant was reckless as to the lack of consent.
“Without Consent”
Recall that at common law, rape required the sexual act to be “forcibly and against [the woman’s] will.” The victim had to manifest an extreme resistance to the assault to demonstrate a lack of consent. Early legal scholars viewed a sexual encounter without active resistance as consensual. Rape required proof that the sexual act was achieved by the use of force or threat of force and that it was non-consensual.
Alaska’s criminal code has decoupled force and consent. The law no longer requires the sexual act to be achieved “forcibly and against her will.” Instead, the government must prove that the defendant engaged in the sexual act without the consent of the victim. Resistance is not required; the victim need not fight back or say “no.” Sexual activity may be non-consensual even if the victim acquiesces, freezes, or privately submits. AS 11.41.445(c). Any expression of a lack of consent is sufficient.
Consent is a positive agreement to cooperate in a specific sexual act. It must be freely given and demonstrated through expressed words or action. Consent is also temporal. It is specific to the sexual act at issue and reversible. Although the defendant must still act recklessly concerning the lack of consent, consent is based on the surrounding circumstances, including what was said (and not said) before, during, and after the encounter. AS 11.41.470(10).
Figure 10.7 Alaska Criminal Code – Alaska Statute 11.41.470(10)
Thus, although a defendant must act recklessly with respect to the victim’s lack of consent, in the simplest of terms, unwanted sexual activity is sexual assault. Sexual penetration without consent is a Class B felony sex offense. Sexual contact without consent is a Class C felony sex offense. Compare AS 11.41.420(a)(5) and AS 11.41.425(a)(7).
Aggravated Sexual Assault
If a defendant compels sexual activity through force, fraud, or another aggravating circumstance, the crime is elevated to aggravated sexual assault. See e.g., Figure 10.8. For example, first-degree sexual assault (aggravated sexual penetration) outlines six separate aggravating circumstances that, if proven, elevate the assault to either an unclassified or class A felony sex offense. AS 11.41.410(b). Non-consensual sex achieved without the use or threatened use of force, fraud, or other aggravating circumstance remains a sex offense, albeit a lower one. See e.g. Figure 10.6.
Figure 10.8 Alaska Criminal Code – First-Degree Sexual Assault (AS 11.41.410(a))
Forcible Sexual Assault
A defendant’s use of force to commit the sexual act frequently demonstrates that the sexual activity was non-consensual. But this is not always the case. Force does not necessarily prove a lack of consent. For example, “rough sex,” provided it is consensual and does not cause serious physical injury, is not a crime.
For aggravated sexual assault, the defendant’s use of force must go beyond what is necessary to achieve the charged act (i.e., sexual penetration or sexual contact). But recall, Alaska’s definition of “force” is quite broad. Any struggle, resistance, or implicit threat will suffice. See e.g. Dorsey v. State, 480 P.3d 1211 (Alaska App. 2021); Inga v. State, 440 P.3d 345 (Alaska App. 2019). Coercion is evaluated from the perspective of the victim who is subjected to unwanted sexual activity. See State v. Mayfield, 442 P.3d 794, 799 (Alaska App. 2019). To be guilty of forcible sexual assault, the evidence must demonstrate that the victim engaged in sexual activity as the result of coercion (i.e., force or the threat of force) and not as the result of a non-forcible threat (e.g., threatening a victim with economic harm like job termination). Such conduct is still sexual assault, but not aggravated sexual assault. For example, a situation where a person grabs the victim’s genitals spontaneously, and the victim freezes out of shock, but no threats are made, would constitute “simple” sexual assault, not “aggravated” sexual assault.
You be the Judge …
Tim and Mary (Tim’s fiancée) were at a crowded bar in downtown Juneau. The bar was packed and Mary had to guide Tim through the crowd holding his hand. It was impossible to walk through the bar without brushing up against people.
Townsend approached Tim and grabbed and squeezed Tim’s genitals through his clothing for about three to four seconds. Tim dropped Mary’s hand and turned to see who grabbed him. Townsend made eye contact and said, “How are you doing?” Tim and Townsend had never met before. Tim lunged at Townsend but was prevented from reaching him by other people in the bar.
Tim chased Townsend out of the bar and then saw a police officer. Tim reported the incident to the officer. The officer contacted Townsend; Townsend admitted that he grabbed Tim’s genitals and explained that he did this to “hit on” Tim.
The prosecutor charged Townsend with then-second-degree sexual assault, which was defined as engaging in “sexual contact with another person without the consent of that person.” (Formerly AS 11.41.410(a)(1), now AS 11.41.425(a)(7)). Did Townsend touch Tim’s genitals “without consent” as that term is defined in Alaska Law? Check your answer at the end of the chapter.
Sexual Assault by Fraud
A defendant who tricks a victim into having sex by impersonating someone else is guilty of sexual assault. This is a substantial change from common law. Historically, sex by fraud was non-criminal. For example, at common law, a twin who tricked his twin brother’s wife into having sex was not guilty of common law rape. See e.g., People v. Hough, 607 N.Y.S2d 884 (N.Y. 1994). This conduct is criminal under Alaska law. AS 11.41.410(a)(1)(B). Thus, if a victim falls asleep in bed with their lover and, unbeknownst to the victim, another person gets into bed with them, and the victim has “consensual” sex with the person believing the person to be their lover, the person would be guilty of aggravated sexual assault. The government would still need to prove the person took steps to impersonate someone known to the victim, but sex through impersonation is criminal.
Attendant Circumstances – Inability to Consent
There are circumstances when a person is unable to consent as a matter of law. Notably, individuals who are “mentally incapable,” “incapacitated,” or under the “age of consent.” In the eyes of the law, these individuals are unable to make informed decisions, and thus, are unable to consent to otherwise voluntary sexual activity.
Mentally incapable means that the person is suffering from a mental disease or defect that renders the person incapable of understanding the nature or consequence of the sexual act, including the potential for harm the victim may suffer. See AS 11.41.470(4). Recall that a mental disease or defect means the person is incapable of coping with the ordinary demands of life. AS 12.47.130(5).
This group – those who are either temporarily or permanently mentally incapable – comprise a very small segment of the larger mentally impaired population. Mental incapacity means more than mental illness. The victim must not have the capacity to understand the full range of ordinary and foreseeable social, medical, and practical consequences of sexual activity. Profound intellectual disability (formerly called profound mental retardation) falls within this category of mental incapacity. See e.g., Jackson v. State, 890 P.2d 587 (Alaska App. 1995).
Incapacitation, on the other hand, means the victim was temporarily incapable of understanding that they were engaged in sexual activity. Normally, this occurs as the result of extreme intoxication, but may also occur because the victim is unconscious or asleep. If the victim is incapable of understanding that they were engaged in the sexual act – either because of voluntary intoxication or unconsciousness (sleep) – the law treats the victim as incapacitated. See Ragsdale v. State, 23 P.3d 653, 658 (Alaska App. 2001). The unaware victim cannot consent to the sexual act.
Sexual Abuse of a Minor (Statutory Rape) – Modern Trends
Certain minors, depending on their age, cannot consent to sexual activity. They are incapable of consent as a matter of law. Whereas sexual assault requires affirmative proof of the victim’s lack of consent, sexual abuse of minor substitutes the child’s age for proof of consent. These statutes punish all acts of sexual activity between adults and minor children, regardless of whether the child consented to the sexual activity or not. Sexual abuse laws protect children from undue, coercive adult influences, and are intended to deter abusers from preying on children.
At common law, statutory rape prohibited an adult man from engaging in sexual relations with a child under “the age of consent.” See Statutory Rape, Black’s Law Dictionary (6th ed. 1990). Each state determined the age of consent, typically somewhere between twelve and sixteen years old, as it saw fit. See Wayne R. LaFave, Substantive Criminal Law, §17.4(c) (3d ed. 2018).
Modern criminal codes, including Alaska’s, have largely maintained the overarching policy of statutory rape: children are too socially and emotionally immature to consent to sex with an adult. Generally speaking, a child under the age of 16 years old cannot consent to sexual activity with an older adult. Although sixteen is commonly referred to as “the age of consent,” the law is more complicated than the phrase suggests. The criminal code has created a web of laws that prohibit older individuals from engaging in either sexual penetration or sexual contact with younger individuals. The prohibited conduct is dependent on both the age of the victim and the age of the perpetrator. Typically, the law creates a three-year age difference requirement to distinguish young adults and older adults. As an example, look how Alaska’s sexual abuse of a minor in the first degree statute outlines the different prohibited conduct and the required ages of both the offender and the victim.
Figure 10.9 Alaska Criminal Code – Sexual Abuse of a Minor in the First Degree (AS 11.41.434)
Mistake of Age Defense
Historically, the defendant was held strictly liable for the age of the victim. The defendant’s mistaken belief of the victim’s age was no defense. In this sense, statutory rape was considered a strict liability offense. It did not matter whether the defendant honestly and reasonably mistook the victim’s age or even if the victim represented they were older. If the defendant engaged in sexual activity with a child under the age of consent, the defendant was guilty of statutory rape regardless of the circumstances. See e.g., State v. Guest, 583 P.2d 836 (Alaska 1978).
The harshness of this rule has given way to the affirmative defense of the mistake of age. See AS 11.41.445(b). Now, a defendant charged with sexual abuse can present evidence that they honestly mistook the victim’s age (believing the victim was older), and took reasonable measures to verify the victim’s age. As with all affirmative defenses, the defendant bears the burden of proving the existence of the defense. As recognized by the Court of Appeals, “it is fair to expect people to exercise caution when choosing a youthful sexual partner. And, if the defendant claims that a mistake was made, it is fair to expect the defendant to prove the reasonableness of that mistake—to prove that the mistake was not the result of intoxication, lack of concern, or other unreasonable behavior.” Steve v. State, 875 P.2d 110, 123 (Alaska App. 1994), abrogated on other grounds by Jeter v. State, 393 P.3d 438 (Alaska App. 2017).
Position of Authority
In 1990, Satch Carlson, an Anchorage high school teacher, had consensual sex with a seventeen-year-old student. Once authorities discovered the sexual relationship, the government criminally charged Carlson with several counts of sexual abuse of a minor. The statutes in effect at that time prohibited adults from having sex with sixteen- and seventeen-year-old minors entrusted to their care “by authority of law.” The charges against Carlson were dismissed after an Anchorage Superior Court Judge determined that the statutes prohibited sex with legal guardians, but not teachers.
In response to the Carlson decision, the Alaska legislature amended the law to prohibit sexual activity between minors and adults in “positions of authority.” The legislature intended this provision to encompass not just teachers, but “substantially similar” adults “who are in positions that enable them to exercise undue influence over children.” The term position of authority means “employer, youth leader, scout leader, coach, teacher, counselor, school administrator, religious leader, doctor, nurse, psychologist, guardian ad litem, babysitter, or a substantially similar position, and a police officer or probation officer other than when the officer is exercising custodial control over a minor.” AS 11.41.470(5). This list is not exclusive. Any authority figure that is substantially similar to the positions listed will constitute a person in a position of authority. See id.
Sexual Penetration
Recall that at common law, rape required “carnal knowledge.” Modern criminal codes have eliminated such arcane language and replaced it with sexual penetration (or sexual contact where appropriate). The term sexual penetration is very broad, and includes not only genital intercourse, but also cunnilingus, fellatio, and anal intercourse. AS 11.81.900(b)(62). Sexual penetration includes, “any intrusion, however slight, of an object or any part of a person’s body into the genital or anal opening of another person’s body.”
The definition of sexual penetration is intentionally broad, and not limited to medical interpretation. Thus, any intrusion of the victim’s genitals or anus will qualify. For example, the term “vagina” is not a medical term for purposes of sex offenses. Instead, it is used in the broader, colloquial sense. Likewise, “genital” opening is not limited to “vaginal” opening. Female genitalia includes the labia majora, labia minora, and clitoris. In short, the entire female external genital organ. Mason v. State, 2004 WL 1418694 (Alaska App. 1994). This distinction is important as most victims, advocates, and criminal justice practitioners use imprecise medical terminology when describing sexual assaults and sexual abuse.
Sexual Contact
Remember that unwanted sexual contact is typically graded lower than sexual penetration. The term sexual contact means the touching by the defendant of the victim’s genitals, anus, or female breast or the defendant causing the victim to touch the defendant’s or victim’s genitals, anus, or female breast. AS 11.81.900(b)(61). Sexual contact can occur over or under clothing. The victim need not be undressed for sexual contact to occur. Sexual contact may also occur through the unwanted “contact with semen”. See Fig 10.10.
Figure 10.10 – Alaska Criminal Code – Sexual Contact (AS 11.81.900(b)(61))
The term “female breast,” as contained in the statutory definition of sexual contact, refers to the breasts of all females, including prepubescent girls without developed breasts; therefore, a defendant can be convicted of second-degree sexual abuse of a minor by touching a nine-year-old girl’s breasts. Stephan v. State, 810 P.2d 564 (Alaska App. 1991). Touching another person’s buttocks does not constitute “sexual contact” under Alaska law, but may constitute the crime of harassment. See AS 11.41.120; State v. Mayfield, 442 P.3d 794 (Alaska App. 2019).
Rape Shield Law
A defendant is not permitted to rely on a victim’s promiscuity to prove consent. The idea that since a victim freely consented to have sex with other people, the victim likely consented to sex with the defendant is a long-outdated view of human sexuality. Such evidence is not admissible. Generally speaking, a victim’s past sexual conduct has no relevance to a victim’s current sexual conduct. Napoka v. State, 996 P.2d 106 (Alaska App. 2000). This rule is codified as Alaska’s rape shield law. See AS 12.45.045.
The statute is designed to protect the victim from unwarranted invasion into their private life. This includes evidence of the victim’s past sexual employment (e.g., adult film star) or sexual orientation. Children are protected from the introduction of their past sexual conduct to the same extent as adults. The rule applies in both sexual assault prosecutions and sexual abuse of a minor prosecutions. If the evidence is built on the inference that the victim freely consented to sex with the defendant because of the victim’s sexual past, then the evidence is irrelevant and inadmissible. See Jager v. State, 748 P.2d 1172 (Alaska App. 1988). Simply put, a person’s prior sexual experience (or lack thereof) is largely irrelevant to whether a person consented to a particular sexual act.
To be clear, the rape shield law only prohibits evidence of a victim’s sexual conduct when the purpose of the evidence is to imply the victim willingly engaged in sexual relations with the defendant because the victim willingly engaged in sexual relations with other people. It is not an absolute bar to the introduction of the victim’s past sexual conduct. If, for example, the victim’s past sexual conduct is offered to explain the victim’s sexualized behavior, it might be admissible (e.g., to explain why a child knows certain “sexualized” terms) or if offered to show the victim had made a prior false allegation of sexual assault. See e.g., Worthy v. State, 999 P.2d 771 (Alaska App. 2000). Likewise, given that consent is based on the “totality of the circumstances surrounding the offense”, it is possible that a court would find that a victim’s past sexual behavior is relevant in determining whether a particular sexual act was consensual under the circumstances. See AS 11.41.470(10).
Example of Relevant Past Sexual Conduct of Victim
Amanda and Sam dated for approximately 6 months, during which time, they engaged in consensual sexual intercourse on several occasions. After they break up, Amanda and Sam engage in sexual intercourse. Amanda reports to police that Sam came to Amanda’s house and forced her to have sex against her will. Amanda tells the police that she tried to stop Sam from coming into her house, but Sam forced his way in and then forced himself on Amanda. When police interview Sam, Sam admits to having sex with Amanda but contends that the sex was “100% consensual”, both before and after their breakup. Sam tells police that he never had non-consensual sex with Amanda. At trial, Sam argues that the entire past sexual relationship between him and Amanda was consensual. Sam wants to tell the jury that Amanda is lying and she is simply mad at him for breaking up with her.
In this case, evidence of Amanda’s past sexual conduct with Sam would be admissible. Amanda’s past sexual conduct with Sam is not excludable under the rape shield law. Sam is not arguing that Amanda is promiscuous, but instead, he is offering evidence to show that they (Sam and Amanda) had a past, consensual sexual relationship. Sam is properly seeking to use this evidence to show that he reasonably believed that she consented to the sexual encounter at issue given their past relationship. The jury is entitled to know about Sam and Amanda’s history of consensual sex in determining whether the sexual encounter at issue was non-consensual. This is not to say that the jury is required to believe Sam. Instead, it is simply a recognition that Sam and Amanda’s past relationship puts the allegation in context.
Sex Offense Penalties
The penalties for sex offenses are significant. For example, first-degree sexual assault carries a presumptive range of 20 to 30 years for a first felony offender, 30 to 40 years for a second felony offender, and 40 to 60 years for a third felony offender. See Figure 1.6. Except for murder, no other crime has such harsh penalties. Even though the legislature enacted significant sentences for sex offenders, the sentences do not constitute cruel and unusual punishment in violation of the Eighth Amendment or the Alaska Constitution. See Sikeo v. State, 258 P.3d 906, 908 (Alaska App. 2011). Sex offenders also face severe collateral consequences unseen elsewhere in the criminal justice system.
The reason is two-fold: one, sex offenders, similar to murderers, inflict a nearly unmatched level of harm against victims. Victims of sexual violence suffer long-term trauma, especially when the victims are children. Because of the level of harm caused, punishment tends to focus on incapacitation instead of rehabilitation. Second, many believe sex offenders are more likely to recidivate than other offenders. “[A]s a group, convicted sex offenders are much more likely than other offenders to commit additional sex crimes.” Doe v. Pataki, 120 F.3d 1263, 1266 (2d Cir. 1997).
Recent research suggests that the recidivism rationale for harsh criminal penalties for sex offenders may be misplaced. Although a detailed discussion is beyond the scope of this book, there is a significant body of research to suggest that sex offenders are actually less likely to recidivate than other sorts of criminals. Data on the recidivism rates for sex offenders released from prison show that their recidivism rates are relatively low compared to Alaskans convicted of other offenses. See Brad A. Myrstol et. al., Alaska Sex Offender Recidivism and Case Processing Study: Final Report, Alaska Justice Statistical Analysis Center (2016); see also2019 Sex Offense Report, Alaska Criminal Justice Commission (2019). To be clear, this is not to suggest that sex offenders should receive less harsh penalties, but simply that the stated rationale that sex offenders are more likely to re-offend may be on shaky ground.
Imprisonment is not the only penalty. A host of direct and collateral consequences flow from a criminal conviction for a sex offense. Certain sex offenders are not eligible for discretionary parole unless the three-judge sentencing panel has expressly made them eligible for parole. AS 12.55.125(i)(1)(F); 33.16.090. Sex offenders also receive a heightened level of treatment, programming, and management by the Department of Corrections, both while in-custody and upon release to community supervision. See 2019 Sex Offense Report, Alaska Criminal Justice Commission (2019). Convicted sex offenders are prohibited from holding certain jobs and professional licenses. A complete list of collateral consequences is beyond the scope of this text.
Alaska Sex Offender Registration Act
Sex offenders must also register with the Alaska Department of Public Safety (DPS) under the Alaska Sex Offender Registration Act (ASORA). DPS maintains a publicly searchable, internet-based, central registry of all offenders. The registry provides the offenders’ full name, photograph, home address, and type of criminal conviction. ASORA requires sex offenders convicted of a single, non-aggravated sex offense to register as a sex offender for 15 years. AS 12.63.020(a)(2). Lifetime registration is required when a person is convicted of (1) a single aggravated sex offense, or (2) two or more sex offenses. AS 12.63.020(a)(1)(A). The “two or more” sex offenses may be part of the same criminal proceeding. See Ward v. State, 288 P.3d 94, 95 (Alaska 2012). Thus, a defendant who commits multiple aggravated sex offenses in one episode will be required to register as a sex offender for life, even if the convictions are the defendant’s first criminal convictions.
Although offenders are required to register for significant periods – 15 years or life – depending on the nature of the underlying conviction, an offender is entitled to petition the Superior Court for removal from the registry if the offender can demonstrate that they are no longer a danger to the community. See Doe v. DPS, 444 P.3d 116 (Alaska 2019). Offenders who fail to register with DPS are guilty of a new criminal offense: Failure to Register as a Sex Offender under AS 11.56.840. The first conviction for failing to register is punishable by up to one year in jail; subsequent convictions are felonies. AS 11.56.835. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/10%3A_Violent_Crimes_(Crimes_Against_the_Person)/10.05%3A_Sexual_Violence_and_Sex_Offenses.txt |
Robert Henderson
Summary
Assault and battery are often included in the same statute (called assault) but at common law they were separate offenses with distinct elements. Battery was generally a purposeful unlawful harmful or offensive touching without the victim’s consent. Assault was an attempted battery. Modern assault includes both assault and battery. Assaults are graded based on the extent of the injury, instrumentality of injury, and the culpable mental state. Misdemeanor assault normally involves minor injury or the reasonable apprehension of minor injury. Assaults are aggravated when a weapon is used or the resulting injury is serious.
Stalking is different from assault as it criminalizes the pattern of behavior that causes fear. Whereas assault requires the victim to be placed in imminent fear, stalking requires a series of repeated nonconsensual contacts that would place a reasonable person in fear of death or serious physical injury. Typical stalking behavior includes following the victim, continually calling or texting the victim, or randomly showing up at the victim’s workplace or residence uninvited. Stalking can raise constitutional concerns as it criminalizes conduct that, if conducted in isolation, would be permissible and lawful. Stalking survives constitutional attack, however, because it focuses on the assaultive nature of the defendant’s behavior.
Robbery is the purposeful theft of property from the victim’s person by force or the threat of imminent physical harm. Robbery is a crime of violence and not a crime against property. Extortion is the purposeful theft of property by a threat of future harm such as bodily injury or exposure of the victim’s crime or secret that subjects the victim to hatred, contempt, or ridicule. Extortion is a felony. Coercion is using force (or the threat of force) to compel a person to do (or abstain from doing) a lawful act. Coercion, like robbery and extortion, is a felony.
Kidnapping is the purposeful confinement and asportation (i.e., movement) of a victim for the purpose of obtaining a ransom, taking a hostage, inflicting injury or harm on the victim, interfering with the purpose of government or political function, or committing a separate felony. The defendant’s restraint of the victim must be more than merely incidental to the target crime. Courts use a multifactor test to determine if the level of force was incidental.
States vary as to how they categorize and grade sex offenses but all have their origins in common law rape. Common law rape was the unlawful carnal knowledge of a women by a man forcibly and against her will. This definition was very specific and very limited. Alaska categorizes its sex offenses into two separate groups – sexual assault and sexual abuse of a minor (statutory rape). Alaska has eliminated the requirement that the victim resists the sexual act. Alaska has also eliminated the exemption for spousal rape, among others. The modern criminal code recognizes that sexual violence need not be sexually motivated. The crux of sex offenses is that sexual activity occurred without the victim’s consent. Without consent requires coercion – the actual use or threatened use of force. Several groups of individuals are incapable of consenting to sexual activity by operation of law, including those who are mentally incapable, incapacitated, and under the age of consent. Sex offenses carry very harsh penalties and numerous collateral consequences. Alaska’s rape shield law governs the admissibility of evidence of the victim’s past sexual conduct during a sexual assault or a sexual abuse of a minor trial.
Key Takeaways
• At common law, assault and battery were separate and distinct crimes. Battery was the physical contact that resulted in injury or offensive touching. Assault was the attempted battery or intentionally placing another person in fear of a battery. Some jurisdictions still recognize the distinction.
• Alaska has consolidated assault and battery into the single offense classification of “assault.”
• Alaska recognizes four degrees of assault, each separated by the extent of injury, the instrumentality of the injury, and the defendant’s culpable mental state.
• Physical injury means a physical pain or an impairment of physical condition.
• Serious physical injury means serious and protracted disfigurement or impairment or a physical injury caused under circumstances creating a substantial risk of death.
• Dangerous instrument is an attendant circumstance that generally evaluates a misdemeanor assault to a felony assault.
• Dangerous instrument must create a risk of actual risk of death, not a hypothetical risk of death.
• To constitute assault, the victim must be injured or aware of the imminent threat of harm. The defendant need not purposely threaten a victim, but must at least act recklessly.
• Robbery requires a taking accomplished by force or threat of imminent force. Extortion requires a taking by the threat of future harm and coercion criminalizes a threat of force to compel a person to do (or not do) something they have the legal right to do (or not do). All three are crimes of violence, not crimes of property.
• There are two degrees of robbery. First-degree robbery includes all armed robberies; second-degree robbery includes all robberies in which force is used or threatened to be used. Robbery is an inherently dangerous felony for felony murder.
• Kidnapping is the intentional nonconsensual restraint of another person.
• Kidnapping is the purposeful confinement and asportation (movement) of a victim.
• The defendant’s restrain of the victim has to be more the merely incidental to the target crime.
• Common-law rape was a capital offense, did not include rape of a spouse, and required extreme resistance by the victim.
• Alaska has modernized its sexual assault statutes to criminal spousal rape, eliminate the requirement for extreme resistance, and make the statutes gender-neutral.
• Sexual assault requires the sexual activity occur without consent of the victim.
• The culpable mental state of sexual assault is knowingly engaging in sexual conduct with reckless disregard for the victim’s consent.
• Several groups are unable to consent by operation of law, including someone who is mentally incapable, someone who is incapacitated, and children.
• Sex offenses have very severe penalties, based on the harm caused to the victim and because of the belief that sex offenders are likely to recidivate. However, research shows that sex offenders are actually less likely to recidivate than other sorts of criminals.
Answers to “You be the Judge” Exercises
From “You be the Judge” in Assault:
1. A reasonable juror could find that Dulier used the flare gun in a manner that created a substantial risk that Sears would suffer serious physical injury, i.e., “physical injury that causes serious and protracted disfigurement, protracted impairment of health, [or] protracted loss or impairment of the function of a body member or organ[.]” Sears testified that if the other patron had not pushed him, the flare would have gone straight into his neck rather than ricocheting off the side of his neck. And even with this last-second intervention, Sears still had significant injuries: a bloody gouge, a burn, a bruise on his neck, a swollen throat, and difficulty speaking for several days. See Dulier v. State, 451 P.3d 790, 792 (Alaska Ct. App. 2019).
From “You be the Judge” in Stalking:
1. This hypothetical comes directly from Peterson v. State, 930 P.2d 414, 428 (Alaska App. 1996). The court explains that the skinheads would not be guilty of stalking even though,
“the government could plausibly claim that the defendant, through repeated acts of nonconsensual contact as defined in AS 11.41.270(b)(3), has placed another person in fear of injury or death (either for themselves or for a family member). Further, the government could plausibly claim that the defendant consciously disregarded a substantial and unjustifiable risk that his conduct would have this result. Yet the defendant’s conduct was not directed at anyone; that conduct consisted of nothing more than riding the bus or pursuing a livelihood.”
From “You be the Judge” in Robbery:
1. In order to prove the crime of second-degree robbery, the State was required to prove that Moto was “taking or attempting to take property from the immediate presence and control of another” person, and that he “use[d] or threaten[ed] the immediate use of force” upon another person with the “intent to … prevent or overcome resistance to the taking … or the retention of the property.” Moto took the computer from Vesotski’s “immediate presence or control” because Vesotski was lying in bed and the computer was approximately ten to twelve feet away on his desk. Property is in a victim’s ‘immediate presence or control’ if the property is ‘close enough to the victim and sufficiently under his control that, had the victim not been subjected to violence, he could have prevented the taking. Also, Moto used force when he told Vesotski he would kill him if Vesotski did not put his head back on his pillow, or if Vesotski reported the incident to the police. These threats prevented Vesotski from retaining his computer. Moto v. State, 2010 WL 4138413 (Alaska App. 2010).
From “You be the Judge” in Sexual Violence:
1. Under the current definition of “without consent” this conduct would qualify as a third-degree sexual assault. AS 11.41.425(a)(7). The law does not require coercion, force, or the threat of force to qualify as “sexual contact with another person without consent of that person.” See id. This is a recent change to Alaska law. In 2022, the Alaska legislature changed the definition of “without consent”. Before the change, this conduct would not constitute a sexual assault. In State v. Townsend, 2011 WL 4107008 (Alaska App. 2011), the Court of Appeals explained that the phrase “without consent” under the prior law required the State to prove that the defendant did something more than the simple forcible touching. The State was required to show that the victim was compelled to submit to the sexual touching because the defendant coerced the victim to submit to the sexual assault by the use of force or the imminent threat of force. Thus, under the prior law, Townsend did not touch Tim “without consent” as that term was defined in the criminal code. “The evidence shows that, when Townsend assaulted him, [Tim] was not intimidated but reacted immediately to terminate the assault.” You can read the entire opinion online using your UA credentials. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/10%3A_Violent_Crimes_(Crimes_Against_the_Person)/10.06%3A_End-of-Chapter_Material.txt |
Although violent crimes like murder, sexual assault, and robbery are considered particularly heinous, crimes against property can cause enormous loss and suffering, and even injuries or death in some extreme situations. This chapter explores different types of common property crimes, including theft, crimes that invade property like burglary and trespass, arson, and finally, criminal mischief (vandalism).
While this chapter explores crimes against property as a category, not all property is created equal. The law distinguishes crimes depending on the type of property interfered with. Generally, the property falls into one of three categories: real property, personal property, and personal services. Real property is land and anything permanently attached to the land, like a building. Personal property is any tangible or intangible item, but which is movable. Tangible property includes items like money, jewelry, vehicles, clothing, and the like. Intangible property means an item that has value, even though it cannot be touched or held, like stocks and bonds. Personal services include any activity provided by a provider of services.
Consolidated Theft Statutes
Common law theft was separated into three categories: larceny, embezzlement, and false pretenses. The categories differed in the type of property stolen and the method of stealing. Modern jurisdictions have largely abolished these common law categories. Instead, modern criminal codes rely on consolidated theft statutes, which provide a uniform grading system dependent largely on the value of the stolen property or the type of property stolen. What follows is a discussion of theft as defined under Alaska’s modern consolidated theft offenses.
Alaska’s Modern Consolidated Theft Offenses
The primary purpose of Alaska’s statutory theft scheme is the consolidation of the common law “theft-like” crimes, including larceny, larceny by trick, embezzlement, theft of mislaid property, false pretenses, receiving stolen property, and theft of services. The Alaska Legislature eliminated all of these distinct crimes. Alaska now defines “theft” in six separate ways, but largely codifies the former law. Figure 11.1 (AS 11.46.100) outlines the conduct constituting theft. Note that the statute only defines what “theft” is; a person accused of theft is not charged under AS 11.46.100. Instead, the accused thief is charged under one of the degrees of theft (explained below).
Figure 11.1 Alaska Criminal Code – Theft defined
These subsections refer to individual statutes describing how a particular form of theft may be committed. Each particular form is a theory of theft. A theory of theft is how the theft was committed – the degree of the theft is determined by the value or item(s) stolen.
Although theft is defined in one of the above-six ways, it is graded into four degrees for purposes of punishment, depending primarily on the value of the property or services that was the subject of the theft. For example, if the property stolen is valued at more than \$25,000, the crime is theft in the first degree, a Class B felony. AS 11. 46.120. On the other hand, the crime of second-degree theft, a class C felony, is committed when the property stolen is valued at more than \$750 but less than \$25,000 or the item stolen is a firearm or explosive, regardless of the value. Compare AS 11.46.130(a)(1) and 11.46.130(a)(2). Thefts under \$750 are treated as misdemeanors.
As you will see, theft spans a wide range of different behavior. The Legislature specifically defined theft broadly to eliminate the confusing distinctions between historical theft offenses. Common law was frequently plagued with confusing and narrow distinctions between the various forms of larceny. See e.g. Williams v. State, 648 P.2d 603 (Alaska App. 1982). The legislature’s change makes sense: at the end of the day, a victim has suffered loss at the hands of a thief. The defendant’s criminal liability should not be dependent on what the theft is called. Legally speaking, a defendant charged with theft is on notice that they may be convicted of theft under any of the different theories. What follows is a summary of the six theories of theft.
Obtains Property of Another with the Intent to Deprive
The first theory of theft is when a suspect obtains the property of another with the intent to either: (a) deprive another of the property, or (b) appropriate property of another. This theory encompasses both common law larceny and common law embezzlement.
This theory, like most theories of theft, is a specific intent crime. The suspect must have a conscious objective to deprive the rightful owner of the property. AS 11.46.990(8). Thus, “borrowing” property with the intent to return it later does not constitute theft. Theft requires that the defendant either permanently deprive the owner of the property’s use or deprive the owner of the property for a period of time whereby the property’s economic value is lost.
A person can deprive another of property in several ways, including disposing of the property so that it is highly unlikely that the rightful owner will get it back, not returning it unless the owner pays a reward for its return, or transferring any interest in the property. For example, imagine a thief who uses a stolen generator for several days and then throws it into a lake to hide the evidence of the crime. In this scenario, the thief acts with the “intent to deprive another person of property” since he disposed of the property in a way that it is unlikely that the rightful owner will get it back.
Not only must the thief intend to deprive the owner of the property, but the thief must also obtain the property. Obtain simply means that the defendant exercised control over the property. This would include taking, withholding, or appropriating property of another. There is no requirement that the property be carried away as was required under common law larceny (sometimes called “asportation”). In modern times, this means that the property need not be moved to constitute theft. A defendant can appropriate property if the defendant controls the property so that the economic benefit goes to the defendant and not to the rightful owner, or the defendant disposes of the property for the benefit of himself. AS 11.46.990(2).
Simon v. State, 349 P.3d 191 (Alaska App. 2015)
In the following case, the Court of Appeals discusses how the legal definition of “obtains” (for purposes of theft) is broader than one may initially think. Simon v. State analyzes the actus reus of theft in the context of shoplifting. As you read the opinion, notice how the court points out that a shoplifter need not actually deprive a store of their property to be guilty of theft. If a shoplifter exercises unauthorized control over property with the intent to deprive, the essential elements of theft have been satisfied.
349 P.3d 191
Court of Appeals of Alaska.
Harold Evan SIMON, Appellant,
v.
STATE of Alaska, Appellee.
May 8, 2015.
OPINION
MANNHEIMER, Judge.
The earliest, most classic definition of theft is laying hold of property that you know belongs to someone else and carrying it away without permission, with the intent to permanently deprive the owner of the property. The present case requires us to examine how this general notion of theft applies to modern retail stores—stores where customers are allowed to take merchandise from the shelves or display cases, and walk around the store with these items, until they ultimately pay for the items at a checkout station.
The State contends that if a person intends to take the property without paying for it, then the crime of theft occurs at the moment the person removes an article of merchandise from a shelf or display case within the store. The defendant, for his part, contends that the crime of theft is not complete until the person physically leaves the store.
For the reasons explained in this opinion, we conclude that the true answer lies in between the parties’ positions: In the context of a retail store where customers are allowed to take possession of merchandise while they shop, the crime of theft is complete when a person, acting with the intent to deprive the store of the merchandise, performs an act that exceeds, or is otherwise inconsistent with, the scope of physical possession granted to customers by the store owner.
In the present case, the parties disagreed as to precisely where the defendant was located when he was stopped by the store employee: whether he had reached the outer door of the store, or whether he was still inside the vestibule leading to that outer door, or whether he was merely approaching that vestibule. But it was undisputed that the defendant had already gone through the check-out line, and that he had paid for a couple of inexpensive items while, at the same time, either hiding or disguising other items of merchandise—items that he then carried toward the exit.
Even viewed in the light most favorable to the defense, this conduct was inconsistent with the scope of physical possession granted to customers by the store owner. This conduct therefore constituted the actus reus of theft—the physical component of the crime. This conduct, coupled with the mental component of the crime (intent to deprive the store of the property), made the defendant guilty of theft. We therefore affirm the defendant’s conviction.
Underlying facts
The defendant, Harold Evan Simon, went into a Walmart store in Anchorage. Like many other retail merchants, Walmart allows its customers to exert control over its merchandise before making a purchase: customers are allowed to roam the aisles of the store, to handle and examine the items that are offered for sale, and to take these items with them (either in their hands, or in a basket or shopping cart) as they walk through the store, before going to the cash registers or scanning stations to pay for these items.
While Simon was walking through the Walmart store, he took a jacket from a sales rack, put it on, and continued to wear it as he walked through the store. Simon also took a backpack and started carrying it around. At some point, Simon placed several DVDs in the backpack. Simon also picked up a couple of food items. Finally, Simon went to the row of cash registers. He paid for the food items—but he did not pay for the jacket, the backpack, or the DVDs hidden in the backpack.
Simon then left the cash register area and headed for the store exit. Before Simon reached the exit, a Walmart employee approached him and detained him. Simon handed the backpack to the employee, and then he removed the DVDs from the backpack. Simon told the Walmart employee, “There you go; there’s your stuff. I’m sorry; I was going to sell it.” A short time later, the police arrived, and they noticed that Simon’s jacket was also unpaid-for. (It still had the Walmart tags on it.)
Based on this incident, and because of Simon’s prior convictions for theft, Simon was indicted for second-degree theft under AS 11.46.130(a)(6) (i.e., theft of property worth \$50 or more by someone with two or more prior convictions for theft within the previous five years). Simon ultimately stipulated that he had the requisite prior convictions, so the only issue litigated at Simon’s trial was whether he stole property worth \$50 or more.
The State presented the evidence we have just described. Simon presented no evidence. In his summation to the jury, Simon’s attorney focused on potential weaknesses in the State’s proof, and he argued that Simon might have been so intoxicated that he lacked the culpable mental state required for theft (the intent either to deprive Walmart of the property or to appropriate the property for himself). Additionally, toward the end of his summation, Simon’s attorney suggested that Simon “didn’t deprive anyone of property” because “he didn’t even enter the vestibule [leading to the final exit door]”.
This latter argument mistakenly conflated the “conduct” component and “culpable mental state” component of the crime of theft. The State was not required to prove that Simon actually deprived Walmart of its property. Rather, the State was required to prove that Simon exerted control over the property with the intent to deprive Walmart of its property (or to appropriate the property to his own use). See AS–11.46.100(1).
But it appears that the defense attorney’s argument struck some of the jurors as potentially important—because, during its deliberations, the jury sent a note to the judge in which they asked about the vestibule. The jury’s note read: “At what point does [the] defendant ‘exert control over the property of another’ [in] reference to the vestibule area … [and] # 20 of [the jury] instructions[?]”
(The jury instructions informed the jurors, in accordance with AS 11.46.100(1) and AS 11.46.990(12), that before Simon could be found guilty of theft, the State had to prove that Simon “exert[ed] control over the property of another”.)
After conferring with the parties, and without objection from Simon’s attorney, the trial judge responded to the jury’s question [by stating,
The issue for you to decide is whether the State proved, beyond a reasonable doubt, that the defendant intended to take the items from Walmart without paying for them, without regard to any particular area where he was confronted by the Walmart employee.]
[…]
Shortly after receiving [this] reply from the judge, the jury found Simon guilty of theft.
Six days later, Simon’s attorney filed a motion for a new trial, arguing that the judge had committed reversible error in his answer to the jury’s question. Even though Simon’s attorney had not objected to the wording of the judge’s answer (indeed, Simon’s attorney had actually contributed to the wording of the judge’s answer), the attorney now contended that there was a flaw, amounting to plain error, in the wording of the first sentence of the second paragraph.
According to the defense attorney, that sentence should have been worded, “One issue for you to decide …”, rather than “The issue for you to decide …”, because more than one issue was contested at Simon’s trial. The defense attorney pointed out that he had contested the State’s evidence regarding Simon’s culpable mental state, and that he had also argued that Simon might only be guilty of attempted theft, rather than the completed crime.
[…]
Our call for supplemental briefs on how to define the actus reus of theft in this context, and the parties’ positions
Although the judge’s answer to the jury was not flawed in the way Simon contended in his opening brief, the judge’s answer was potentially flawed in another way—because, depending on how the phrase “exert control over property of another” is defined in the context of a retail store, Simon’s location at the time he was apprehended might possibly be the factor that distinguished a completed act of theft from an attempted theft.
We therefore asked the parties to submit supplemental briefs on the issue of what, exactly, is the actus reus of theft in the context of a retail store where customers are allowed to take possession of items of merchandise while they shop.
In its supplemental brief, the State argues that if a person intends to take an article of merchandise without paying for it, then the crime of theft is complete at the moment the person first “exerts control” over that merchandise—by which the State means the act of taking the item from its shelf or display case. Simon, on the other hand, argues that even if a person takes an article of merchandise off the shelf with the intent to steal it, the crime of theft is not complete until the person physically leaves the store with the merchandise.
Why we conclude that, in this context, Alaska’s definition of theft requires proof that the defendant did something with the merchandise that was outside the scope of, or otherwise inconsistent with, the possession authorized by the store
The general definition of the crime of theft is contained in AS 11.46.100(1). Under this definition, theft occurs if a person “obtains the property of another”, acting with the intent “to deprive another of property or to appropriate property of another to oneself or a third person”.
For purposes of the issue raised in Simon’s case, the key portion of this definition is the word “obtains”. This word is defined in AS 11.46.990(12); the relevant portion of that definition is: “to exert control over property of another”.
In situations where the accused thief had no right at all to exert control over the other person’s property, this definition expresses our traditional notion of theft. It describes what most of us think of when we hear the word “theft”—situations where a thief picks up someone else’s property and makes off with it.
The State contends that this definition applies equally to the circumstances of Simon’s case. The State argues that a person in a retail store “exerts control” over an item of merchandise when they pick it up and take it from the shelf or display case. Thus, if a person performs this action with an intent to steal the item, the crime of theft is complete—even if the person is apprehended before they ever attempt to leave the store.
It is true that, in common usage, one might say that shoppers “exert control” over the items that they take from the shelves and put in their shopping baskets (or carry in their hands). But the State’s proposed interpretation of the statute is inconsistent with the traditional common-law approach to theft.
Our present-day crime of theft covers conduct that, at common law, was viewed as two different offenses: larceny and embezzlement.
The common-law crime of larceny covered classic instances of theft, and it required proof of a “trespassory taking”. That is, the government was required to prove that the defendant committed a trespass—violated someone else’s property rights—when they exerted physical control over the property.
The English judges were willing to stretch the concept of trespassory taking to cover situations where the defendant acquired possession by fraud—i.e., situations where the owner of the property voluntarily gave possession (but not title) to the defendant because of the defendant’s lies. But the common-law crime of larceny did not apply to situations where, in the absence of fraud, the owner voluntarily allowed another person to take possession of the property.
For example, a wealthy person might entrust a butler or maid with daily custody of their silverware, or they might take the silverware to a shop and temporarily leave it with the employees for polishing or cleaning. Or, turning to more modern situations, people who are about to purchase a house or other real estate will ordinarily leave a large sum of money in escrow with a third party (a bank or an escrow company), with instructions that the money be transferred to the seller if the deal is successful. And the owners of businesses ordinarily entrust their bookkeepers with checkbooks or access codes that allow the bookkeepers to pay bills, pay employees’ salaries, and otherwise disburse the company’s funds for business purposes.
To cover situations where theft occurred after the owner of the property voluntarily allowed one or more people to exert control over the property for a particular purpose (or range of purposes), a new crime was created: “embezzlement”.
In these situations, one might reasonably say that the employees or custodians were already “exerting control” over the owner’s property (with the owner’s permission) before they stole it. Accordingly, one might argue that these employees or custodians became guilty of embezzlement at the very moment they formed the mens rea of the crime—the moment they decided to deprive the owner of the property—even if they performed no further action toward this goal.
But one of the axioms of the common law was that a person should not be punished for their thoughts alone. Thus, in prosecutions for embezzlement, proof of the defendant’s larcenous thoughts was not enough: the common law required proof that the defendant’s conduct departed in some way from the conduct of someone who was dutifully upholding the property owner’s trust (and that this conduct was prompted by an accompanying intent to steal). The government was required to prove that the defendant exerted unauthorized control over the property—i.e., engaged in conduct with the property that was inconsistent with the type or scope of control that the property owner had allowed.
When the drafters of the Model Penal Code created the crime of “theft” (a crime that was intended to encompass and modernize the common-law crimes of embezzlement and larceny in its various forms), the drafters expressly included this concept of exerting unauthorized control.
Model Penal Code § 223.2(1), the provision that defines the crime of theft as it relates to movable property, declares that a person is guilty of theft if the person “unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof.” (Emphasis added) And in Section 2 of the Comment to § 223.2, the drafters emphasized that the crime of theft requires an unauthorized taking or an unauthorized exercise of control:
The words “unlawfully takes” have been chosen to cover [all] assumption of physical possession or control without consent or authority…. The language “exercises unlawful control” applies at the moment the custodian of property begins to use it in a manner beyond his authority…. The word “unlawful” in each instance implies the [actor’s] lack of consent or authority [for the taking or the exertion of control].
American Law Institute, Model Penal Code and Comments, Official Draft and Revised Commentary (1962), pp. 165–66.
In Saathoff v. State, 991 P.2d 1280, 1284 (Alaska App.1999), this Court recognized that this provision of the Model Penal Code “appears to be the source of the definition of ‘obtain’ codified in AS 11.46.990[ (12) ]—‘to exert control over property of another’.”
But unlike the vast majority of other states that enacted theft statutes based on the Model Penal Code, the drafters of Alaska’s criminal code did not include the words “unauthorized” or “unlawful” when they defined the word “obtain”. Instead, the drafters defined “obtain” as simply “to exert control over property of another”. See Tentative Draft 11.46.990(6), Alaska Criminal Code Revision Subcommission, Tentative Draft, Part 3 (“Offenses Against Property”), p. 98.
There is nothing in the Tentative Draft of our criminal code explaining (or even commenting) on the drafters’ omission of “unauthorized” or “unlawful”. There is only a derivation note, saying that Alaska’s definition was based on the Oregon theft statutes—that it came from Oregon Statute 164.005. Id. at 104.
This Oregon statute uses the word “appropriate” rather than the word “obtain” to describe the actus reus of theft. But, like Alaska’s definition of “obtain”, the Oregon definition of “appropriate” does not include the words “unauthorized” or “unlawful”:
“Appropriate property of another to oneself or a third person” or “appropriate” means to:
(a) Exercise control over property of another, or to aid a third person to exercise control over property of another, permanently or for so extended a period or under such circumstances as to acquire the major portion of the economic value or benefit of such property; or
(b) Dispose of the property of another for the benefit of oneself or a third person.
But even though this statutory language does not expressly include the modifiers “unauthorized” or “unlawfully”, the Oregon courts have construed this language to require proof that, when the defendant “appropriated” the property of another, the appropriation was unauthorized or unlawful—in the sense that it constituted a “substantial interference with [another person’s] property rights”, State v. Gray, 543 P.2d 316, 318 (1975), or that it constituted an “unauthorized control of property”, State v. Jim, 508 P.2d 462, 470 (1973).
The Oregon Court of Appeals’ decisions in State v. Gray and State v. Jim were issued before the Alaska Criminal Code Revision Subcommission drafted our theft provision in 1977. Thus, when the drafters of the Alaska theft statutes composed our definition of “obtain” (based on the Oregon statute), the Oregon courts had already construed their statute to require proof of an unauthorized exertion of control (even though the statute did not explicitly mention this requirement).
For these reasons, we hold that Alaska’s definition of “obtain”, AS 11.46.990(12)(A), includes a requirement that the defendant’s exertion of control over the property was unauthorized. This interpretation of the statute is supported by the principles of the common law, it is consistent with the law of Oregon (the state from which our statute was immediately derived), and it brings Alaska’s law of theft into conformity with the law of every other jurisdiction (at least, every other jurisdiction we are aware of) that has enacted theft statutes based on the Model Penal Code.
Application of this law to Simon’s case
We have just held that the actus reus of theft requires proof, not just that the defendant exerted control over someone else’s property, but that this exertion of control was unauthorized. […] Depending on the facts of a particular case, it might make a difference where a shoplifter is apprehended—because there might be cases where defendants could plausibly argue that they had not yet taken the merchandise anywhere that was inconsistent with the scope of their implicit authority as customers.
On this point, we wish to point out that even though a defendant’s physical location when apprehended may be relevant to the issue of whether their exertion of control was unauthorized, physical location is not necessarily determinative. There are other types of conduct that a person can engage in, within the confines of a retail store, that are inconsistent with a customer’s scope of authority. See, for example, State v. T.F., 2011 WL 5357814 (Wash.App.2011), where the Washington Court of Appeals upheld the theft conviction of a defendant whose female accomplice hid an item of merchandise under her clothes, even though the defendant and the accomplice never left the store:
T.F. handed the belt to [the accomplice] R.M., [who,] rather than carrying it in the open, … exerted unauthorized control over the belt by placing the belt under her shirt and starting toward the store’s exit. Concealing the belt in this way was an act inconsistent with the store’s ownership of the item…. On these facts, the trial court could have found that a third degree theft had been committed.
T.F., 2011 WL 5357814 at *2.
Turning to the facts of Simon’s case, we conclude that any technical flaw in the judge’s response to the jury was harmless beyond a reasonable doubt.
As we have explained, there was a dispute in Simon’s case as to precisely where Simon was located when he was stopped by the store employee. But under any version of the evidence, Simon had already gone through the check-out line—where he paid for a couple of food items while, at the same time, either hiding or disguising the jacket, the backpack, and the DVDs he had taken—and he was headed toward the exit when he was apprehended.
Even viewed in the light most favorable to the defense, Simon’s conduct constituted the actus reus of theft. His conduct was inconsistent with the scope of possession granted to customers—regardless of whether Simon had reached the outer door, or even the entrance to the vestibule, when he was stopped. Thus, under the specific facts of Simon’s case, the judge’s response to the jury was correct: any variation in the testimony on this point was irrelevant to Simon’s guilt or innocence of theft.
Simon also argues on appeal that the jury instructions on the lesser offense of attempted theft were flawed. Given our resolution of the preceding issue, any error in the jury instructions on attempted theft was harmless.
[…]
Conclusion
The judgement of the superior court is AFFIRMED.
Theft of Marital Property
To commit most forms of theft, the defendant is required to obtain property ofanother. Property of another means property that the defendant is not privileged to infringe. AS 11.46.990(6). You cannot steal your own property, but it is no defense that the property stolen was previously stolen (i.e., the victim was himself a thief). Stealing from a thief is still theft.
But what about jointly owned property, like marital assets? Marital assets include all property earned by either spouse during the marriage. The property, even if earned by one spouse, is owned jointly with the other spouse. Under Alaska law, commonly held property of a married couple constitutes “property of another,” even as between two spouses. Thus, a spouse can steal property from a co-spouse, if they do so with the intent to permanently deprive the spouse of the property. However, such a case is rare. As the Court of Appeals noted in LaParle v. State, 957 P.2d 330 (Alaska App. 1998),
This is not to say that a husband or wife commits theft whenever they spend funds from a joint checking account without the other spouse’s knowledge or permission, or whenever they use common funds to make a purchase or an investment that the other spouse does not approve of. Before a husband or wife can be convicted of stealing marital property, [Alaska law] requires the government to prove that the defendant “[was] not privileged to infringe” the other spouse’s interest. In most instances, both spouses have equal right to possess, use, or dispose of marital property. Thus, one spouse’s unilateral decision to draw funds from a joint checking account or to give away or sell a marital possession normally will not constitute theft, because the actor-spouse will have had a privilege to infringe the other spouse’s interest in the property.
See id. at 334.
Property Subject to a Security Interest
With regard to property subject to a security interest, the code provides that the person in lawful possession of the property shall have the superior right of possession. This is true even if legal title lies with the holder of the security interest pursuant to a conditional sales contract or security agreement. Although this sounds hyper-technical, in essence, unless there is an agreement to the contrary, such as a sales contract, the legal owner of a vehicle (e.g., bank) cannot repossess the vehicle from the registered owner for failure to make payments without first seeking a writ of assistance from the court. Of course, if the sales contract provides for a right of non-judicial repossession, then the legal owner need not seek court intervention.
Theft of Lost or Mislaid Property
The second theory of theft is theft of lost or mislaid property. AS 11.46.160. If a defendant obtains property in a manner knowingly that the property is lost, mislaid, or delivered by mistake, the person is guilty of theft. The defendant must have the specific intent to permanently deprive the rightful owner of the property and fail to make reasonable efforts to find the owner. Reasonable efforts include notifying the property owner or law enforcement.
Example of Theft of Lost or Mislaid Property
John receives a check from his friend for \$10. John goes to the bank and cashes the check. The teller inadvertently gives John \$100 (as opposed to \$10). Once John knows of the mistake, he is required to return the \$90. If John takes steps to deprive the bank of the money (by hiding it under his porch), he may be prosecuted for theft.
Theft by Deception
Theft by deception is similar to the common law crime of false pretenses. AS 11.46.180. Some states refer to this crime as Larceny by Trick. At common law, a person committed the crime of false pretenses if the person obtained title and possession of property by making a false representation about a material fact with the intent to defraud the property owner. The gravamen of false pretenses was the uttering of a deliberate factual misrepresentation to obtain property. The revised code focuses on deception. Deception covers a broad range of conduct designed to create a false impression intended to obtain property. AS 11.81.900(b)(18). For example, a defendant is guilty of theft by deception if they befriend an older adult and tell the person a series of lies in an effort to obtain their money. See e.g.,Linne v. State, 674 P.2d 1345 (Alaska App. 1983). Prosecutions of elder fraud can be grounded in this theory of theft.
Theft by Receiving
Theft by receiving, the fourth theory of theft, occurs if a person buys, receives, retains, conceals, or otherwise disposes of stolen property with reckless disregard that the property was stolen. AS 11.46.190. Within the criminal milieu, this person is commonly referred to as a fence – a person who knowingly buys and sells stolen property. But for criminal liability to attach, the defendant need not “know” that the property was stolen. If the defendant consciously disregards an unjustifiable risk that the property is stolen (i.e., recklessness), the defendant is guilty of theft. Receiving is broadly defined and includes acquiring possession or title to the property. The actus reus of the theory is the retaining of stolen property. A defendant who innocently takes possession of stolen property, unaware that it has been stolen, and later learns the true origins of the property is guilty of theft at the moment they retain the known stolen property. See Saathoff v. State, 991 P.2d 1280 (Alaska App. 1999) affirmed 29 P.3d 236 (Alaska 2001). In essence, theft by receiving is not a continuing offense. The theft is complete once the defendant decides to keep an item aware that it is stolen.
Example of Theft by Receiving
George needs a new flat screen television for his apartment. George buys a large, 4K ultra-flat screen television from a guy in an alley for \$50. (Similar televisions retail at \$2000 brand new). The guy won’t tell George his name, won’t tell him where the television came from, and tells George to ignore the “Property of UAA” sticker that is on the back of the television. In this example, George is guilty of theft by receiving if he decides to buy the television. George acted recklessly when he purchased the television.
Theft of Services
Recall that personal services are different than real or personal property. Personal services include such things as labor, professional services, transportation (such as a taxi ride), telephone service, entertainment, food, and lodging. Theft of services includes obtaining services by deception, force, theft, or other means of avoiding payment for the services. AS 11.46.200. For example, improperly connecting to a video streaming service (e.g., Netflix®) would be theft of services, even if you never watched a single Netflix® show. Cruz-Reyes v. State, 74 P.3d 219 (Alaska App. 2003). It also includes absconding without paying for a hotel, restaurant, or other similar services, and such conduct is prima facie evidence that the services were obtained by deception. Theft of services includes when a person improperly diverts services under their control to their benefit. For instance, the foreman of a painting crew who has his subordinates paint his house on company time. The foreman is guilty of theft of services.
Theft by Failure to Make Required Disposition of Funds Received or Held
The final theory of theft covers the situation where a person receives property by promising to dispose of it in a certain way and fails to fulfill the obligation. Typically, this occurs when an employer withholds specific amounts of money from an employee’s paycheck for taxes and fails to pay the necessary taxes, and instead simply keeps the money for the employer’s own benefit.
Aggregation of Amounts
Because the value of the property stolen is critical for determining which degree of theft has been committed, and consequently the penalty, Alaska law specifies how to determine value. Value generally means the market value of the property, or if that cannot be ascertained, the replacement cost of the property. Further, if a series of thefts are committed “under one course of conduct,” the thefts are aggregated (added together) to determine the total value. AS 11.46.980.
Example of Aggregation
A police officer apprehends a fence (an individual who knowingly purchases stolen property and then resells the items to others), and the investigation proves that the fence purchased the stolen items from the same person over a relatively short period of time. If the stolen items have individual values of \$100, \$200, \$500, and \$400, the defendant can be charged with felony theft since the total value of the property was \$1200 (remember that felony theft is any theft over \$750). The property values can be aggregated.
Theft From the Person (Purse Snatching)
Recall that there are circumstances in which the distinction between robbery and theft is fuzzy. Robbery requires more than “incidental or minimal” force. A defendant who intentionally bumps into a person in an effort to distract the victim from a surreptitious theft does not commit the crime of robbery. Instead, if the property is taken “from the person of another,” the defendant is guilty of second-degree theft. The law treats non-forcible thefts (i.e., pickpocketing) as felony theft, regardless of the value of the stolen property, in part because of the danger associated with using any force to accomplish a theft. AS 11.46.130(a)(3). A purse snatching constitutes felony theft, not felony robbery, unless the amount of force used was non-minimal.
Non-Consolidated Theft Offenses
In addition to consolidated theft offenses (discussed above), the code also includes several crimes that appear similar to theft on their face, but are used to prosecute specific circumstances. For example, the code criminalizes issuing a bad check. AS 11.46.280. A person commits the crime of issuing a bad check if the defendant knows that it will not be honored by the bank. This statute does not require the defendant act with the intent to defraud or that the defendant actually obtain the property. A detailed examination of the various non-consolidated theft offense is beyond the scope of this book. Alaska’s non-consolidated theft offenses can generally be found in 11.46 et. seq.
Vehicle Theft
One non-consolidated theft offense that frequently arises is vehicle theft. Alaska has two degrees of vehicle theft due to the unique circumstances that arise with vehicle thefts. Compare AS 11.46.360 and 11.46.365. First-degree vehicle theft covers those situations we typically think of as “traditional” vehicle theft – that is, a person who takes another person’s vehicle without permission. It also covers less common conduct. Joyriding – the temporary taking of a vehicle without the owner’s consent, but without the intent to permanently deprive the owner of the property – is first-degree vehicle theft. See Allridge v. State, 969 P.2d 644 (Alaska App. 1998). The key to first-degree vehicle theft is that the initial taking must be trespassory. A person who lawfully “borrows” a car, but fails to return it, is not guilty of first-degree vehicle theft. (Although such conduct may constitute second-degree vehicle theft, discussed below.) See Eppenger v. State, 966 P.2d 995 (Alaska App. 1998). First-degree vehicle theft is a felony whereas second-degree vehicle theft is a misdemeanor.
A person who lawfully obtains a vehicle, but retains it beyond the period of time authorized, is guilty of a less serious vehicle theft: second-degree vehicle theft. AS 11.46.365. This occurs most commonly when a person fails to return a car pursuant to a commercial rental agreement, or fails to pay a debt on a rental car.
You be the Judge
Brockman visited Alaska Pacific Leasing, a company that leases and sells trucks and other heavy equipment. Brockman told the salesperson that he was in the market for a new truck, and he indicated he was interested in a 2004 GMC pickup. Brockman discussed financing terms with the salesperson and asked if he could test drive the truck. The salesperson photocopied Brockman’s driver’s license and then gave him the keys so he could take it for a test drive. Brockman drove away in the truck.
Eight days later, the truck was found parked outside the locked gate of Alaska Pacific Leasing. The truck was slightly damaged, had trash inside, and had three thousand additional miles on it. Brockman was charged with first-degree vehicle theft. Was Brockman appropriately charged with vehicle theft? Why or why not. Check your answer at the end of the chapter.
Forgery and Related Offenses
Both at common law and under the revised criminal code, the crime of forgery is separate from the crime of theft. Forgery is the creation of a false legal document (or a material modification of an existing legal document) with the intent to defraud another person. The key to common law forgery was that the false document, created with the intent to defraud, had legal significance (if the document had been genuine). Common law also recognized the related crime of uttering if the false document was presented to the victim as authentic with the intent to defraud.
The revised criminal code divides the crime of forgery into three degrees, which cover different methods of creating, possessing, and passing forged written instruments. The dividing line between the degrees of forgery is not the dollar amount or value impacted, but the kind of document involved.
Any written instrument may be the subject of forgery. A written instrument includes any written or printed matter used for the purpose of conveying evidence of value, right, privilege, or identification. A driver’s license, stock certificate, or deed falls within the definition. AS 11.46.580(b)(3).
Forgery requires the defendant act with an intent to defraud culpable mental state. Intent to defraud includes “an intent to injure someone’s interest which has value, or an intent to use deception.” AS 11.46.990(11)(A). Included within this definition is a forger who passes the forged instrument as long as he knows that he is facilitating an eventual fraud – i.e., selling forged stock certificates that are represented to be forged, to a third person who intends to pass them as genuine.
Forgery normally requires the person to make, complete, or alter a written instrument. Drawing a check and signing someone else’s name would constitute “falsely making” a written instrument. A person who merely signs someone’s name to a check that has already been drawn “falsely completes” a written instrument. The person who changes a check made out for five dollars to five hundred dollars by adding the word hundred “falsely alters” the instrument. All three scenarios constitute forgery. The alteration must be a material one, however. Simply adding a person’s middle initial to a signature would not ordinarily be forgery absent evidence that such an alteration is significant.
Alaska has incorporated the common law crime of uttering into the modern crime of forgery. AS 11.46.510. Now uttering a forged instrument is included within the definition of third-degree forgery. Utter includes all methods of making use of a forged instrument, such as issuing, transferring, circulating, or tendering. Thus, the person creating the forged document and the person using the forged document are both guilty of forgery.
The law elevates forgery to a low-level felony if the forged written instrument is an instrument that conveys a legal right, such as a will, contract, negotiable instrument, or promissory note. If the instrument is a valuable government instrument, then the law elevates the forgery to a class B felony offense.
Alaska has also created several specific crimes surrounding a person’s intent to defraud a victim. A detailed discussion of the offenses is beyond the scope of this book. Each offense focuses on a different method of fraud. For example, criminal simulation criminalizes a fraudulent misrepresentation about antique or rare objects. This occurs when someone attempts to sell an object claiming that it is very old or made by a particular person. AS 11.46.530. Criminal impersonation, on the other hand, is aimed at a person who, with the intent to defraud, assumes a false identity or falsely claims to be someone else. AS 11.46.565. Both, like all forgery offenses, require the prosecution to prove that the defendant acted with a specific intent to defraud the victim.
White-Collar Crimes
White-collar crimes normally fall within the category of business and commercial offenses. White-collar crimes are frequently complex because of their nature. Criminal investigations usually take months or years, and involve close cooperation between various law enforcement agencies and the prosecutor’s office. White-collar criminal investigations are not built quickly. They require significant analysis of documents and the deceptive behavior of suspects. Although such conduct is complex and difficult to investigate, white-collar criminal statutes allow for the prosecution of sophisticated criminal enterprises.
For example, the crime of scheme to defraud covers large-scale fraudulent schemes involving five or more victims or large amounts of money. AS 11.46.600. Similar to the federal mail fraud statute, the statute is used to prosecute large-scale consumer frauds. Courts interpret scheme broadly. The scheme may include trickery, deceit, half-truths, concealment of information, and affirmative misrepresentations. The fraud must be more than mere puffery, but it covers a calculated scheme designed to deceive people of ordinary prudence and comprehension even though no misrepresentation was made. Victims are not required to suffer a particular dollar loss; any monetary loss is sufficient to invoke the statute provided it involved more than five victims.
Example of Scheme to Defraud
Edward Byford was convicted of scheme to defraud for defrauding nine people over the course of two and half years by promising to build log homes for the victims. Byford would show the unsuspecting victims photographs of beautiful log cabins that he had never built. Byford asked the victims to pay him substantial portions of the money up front (hundreds of thousands of dollars) for buildings that never materialized. In addition to taking the victims’ money up front, Byford refused to refund any money to the victims. Byford was convicted of scheme to defraud; his convictions were upheld on appeal. See Byford v. State, 352 P.3d 898 (Alaska App. 2015).
Federal Mail Fraud Statute
The federal mail fraud statute has been used to punish a wide variety of schemes, including Ponzi schemes, like the high-profile prosecution of Bernie Madoff. In a Ponzi scheme, the defendant informs investors that their investment is being used to purchase fictional real estate, stocks, or bonds, when in reality, the money is appropriated by the defendant to pay earlier investors. Eventually, this leads to the collapse of the enterprise and results in significant losses to the investors.
Other Commercial Fraud Crimes
Criminal statutes also punish misapplication of property (frequently used to prosecute attorneys for stealing from their clients), falsifying business records (the preparatory action in anticipation of fraud), and deceptive business practices (criminal violations of the Consumer Protection Act), among others. In essence, all of the statutes criminalize specific acts of “white collar” fraudulent behavior. See 11.46.600 et. seq. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/11%3A_Crimes_Against_Property/11.01%3A_Theft_and_Related_Offenses.txt |
Although we often associate burglary with theft, it is actually an enhanced form of trespass. At common law, burglary was the “breaking and entering of another’s dwelling at night with the intent to commit a felony therein.” See Burglary Black’s Law Dictionary (11th ed. 2019). This narrow definition was an effort to protect citizens in their property, and specifically, in their homes. A “man’s home [was] his castle,” and burglary specifically criminalized the invasion of habitation. Because burglary required the defendant to intentionally commit a felony once inside, burglary was viewed as a series of steps towards the commission of the target offense (generally theft), but since it was a crime against habitation and frequently instilled fear in the victims, it was severely punished. In this regard, burglary was truly a unique form of attempt. See generally, Wayne R. LaFave, Substantive Criminal Law, §21.1(g) (3d. ed. 2018).
Although Alaska has significantly revised the crime of burglary since its territorial days, its primary purpose remains: to punish the “breaking into someone’s property [that] is likely to instill terror in the occupants of the property.” See Pushruk v. State, 780 P.2d 1044, 1046 (Alaska App. 1989). Burglary remains a quasi-inchoate crime akin to attempt; the defendant is punished for entering a building with the intent to commit a crime therein. Completion of the target crime is unnecessary. See State v. Ison, 744 P.3d 416 (Alaska App. 1987).
All burglary offenses, regardless of jurisdiction, contain two basic principles – (1) an unprivileged or unlawful entry into a structure, with (2) a specific intent to commit a crime therein. See generally Taylor v. United States, 495 U.S. 575 (1990) (recognizing that the generic, contemporary meaning of burglary “contains at least the following elements: an unlawful or unprivileged entry into or remaining in a building or other structure with intent to commit a crime.”).
Modern burglary statutes tend to grade the offense based on the type of structure entered and the seriousness of the surrounding circumstances. Alaska has followed this trend. The general burglary statute (second-degree burglary) provides the basic burglary definition. AS 11.46.310. Second-degree burglary has a maximum punishment of five years. Second-degree burglary is relatively straightforward. See Figure 11.2.
Figure 11.2 Alaska Criminal Code – Burglary
First-degree burglary is an aggravated burglary and occurs when (1) the defendant was armed with a weapon, (2) the structure burglarized was a dwelling, or (3) the defendant injured an occupant while inside. AS 11.46.300. First-degree burglary is elevated because of the existence of one of the attendant circumstances identified above. First-degree burglary is punishable by up to 10 years of imprisonment. Also, recall that first-degree burglary is an inherently dangerous felony for felony-murder (provided however, the target crime is not murder). AS 11.41.110(a)(2); 11.41.115(c).
Unauthorized Entry
The actus reus of burglary is satisfied upon a “breaking and entering.” The crime is complete upon the entry. An entry does not necessarily mean the intruder must place their entire body inside a building. Instead, an entry occurs when “an intruder enters by entry of his whole body, part of his body, or by insertion of any instrument that is intended to be used in the commission of a crime.” See Sears v. State, 713 P.2d 1218, 1220 (Alaska App. 1986). The converse is also true. A person who is unable to penetrate a building is only guilty of attempted burglary. See State v. Ison, 744 P.2d 416 (Alaska App. 1987).
Example of an Unauthorized Entry
Jed uses a burglar tool to remove the window screen of a residence. The window is open, so once Jed removes the screen, he places both hands on the sill, and begins to launch himself upward. The occupant of the residence, who was watching Jed from inside, slams the window down on Jed’s hands. Jed has likely committed the unlawful entry required for burglary. When Jed removed the window screen, he committed a breaking. When Jed placed his hands on the windowsill, his fingers intruded into the residence, which satisfied the entry requirement. Jed will likely be prosecuted for burglary rather than attempted burglary, even though he never managed to gain access to the residence.
Example of No Entry
Let’s change the hypothetical above slightly. Instead of using a burglary tool to remove a window screen, let’s assume Jed approaches the front door of the residence to gain entry. Jed inserts a credit card into the door jam, between the door and its frame, intending to slip the lock (and thereby unlocking the door). The credit card never protrudes into the residence. The occupant of the residence, who was watching Jed from inside, runs up to the front door and activates the deadbolt lock. In this scenario, Jed did not penetrate the building – either with his body or an instrument. Jed is guilty of attempted burglary, not a completed burglary. See e.g.,State v. Ison, 744 P.2d 416 (Alaska App. 1987).
“Enter or Remain Unlawfully” Under Alaska Law
Although the voluntary act necessary for burglary has not changed, the common law term of “breaking and entering” has been replaced by the broader concept of “enter or remain unlawfully.” AS 11.46.310. “Enter or remain unlawfully” is defined to mean not only entering a place where the defendant is not permitted, but also includes staying inside somewhere after the premises has closed. Thus, if a person hides inside a department store until it closes with the intent to commit a theft, the person is guilty of burglary.
Conversely, if a person lawfully enters a store – for example, through the front door, during regular business hours and commits a crime– the person is only criminally liable for the crimes they commit thereafter. Put another way, if a defendant commits a theft while inside a store, the defendant is not guilty of burglary, even if the theft occurs in a restricted area. The initial entry was not unlawful. See Arabie v. State, 699 P.2d 890 (Alaska 1985).
You be the Judge…
Dan entered a grocery and liquor store in Fairbanks while it was open for business. The store was a single building with a single main entrance into a foyer. The foyer contained separate entrances to the liquor and grocery departments. The back of the store contained an employee work and storage area, which employees could access from either department. Dan entered a beer cooler and back storage room that was posted “employees only.” While in the back room, Dan picked up two cases of beer and attempted to run out the back door. A store employee heard Dan and stopped him from leaving. The prosecutor has charged Dan with one count of second-degree burglary for “entering or remaining unlawfully” in a building with the intent to commit a crime therein (i.e., theft). Is Dan correctly charged with second-degree burglary? Check your answer at the end of the chapter.
A Specific Intent to Commit a Crime Therein
Burglary is a dual intent crime. A defendant must knowingly enter or remain unlawfully inside a building with the intent to commit the target crime. The government must prove that the defendant (1) knew he was trespassing when he entered or remained in the building and (2) at the time of the trespass, he intends to commit an additional crime inside.
Alaska has departed however from the common law doctrine that a defendant must have a specific intent to commit a crime at the time he “breaks and enters.” If a defendant has the intent to commit a crime at the time his privilege to be on the premises is terminated, the person is guilty of burglary. Thus, a defendant commits the crime of burglary at the time the defendant’s presence becomes unlawful and the defendant has an intent to commit a crime. Recall that if a person hides inside a department store until it closes in an effort to steal merchandise, the person is guilty of burglary.
Building versus Dwelling
Alaska grades burglary differently based on the type of property entered. If a defendant burglarizes a “building,” the defendant is guilty of simple burglary (second-degree burglary); if a defendant burglarizes a dwelling, the defendant is guilty of an aggravated burglary (first-degree burglary). Building is defined broadly to include not only what we ordinarily think of as a building, but also any “propelled vehicle” or any structure large enough for a human to physically enter and occupy. AS 11.81.900(b)(5).
A dwelling is any building that “is designed for use or is used as a person’s permanent or temporary home or place of lodging.” AS 11.81.900(b)(22). Since a camper is a building for use as a person’s temporary home, it would be a dwelling for purposes of the burglary statute. Dwelling also includes tents, hotel rooms, and even fishing boats (if equipped for that purpose). See Shoemaker v. State, 716 P.2d 391 (Alaska App. 1986) (recognizing that a fishing boat was a “dwelling” if equipped to house fishers). Thus, entering a person’s tent who is living on the street, with the intent to steal their belongings once inside, is an aggravated burglary in Alaska.
Coleman v. State, 407 P.3d 502 (Alaska App. 2017)[1]
At first blush, one might assume that classifying a structure as either a building or dwelling is relatively easy. Unfortunately, such an assumption would be wrong. Generally, whether a structure is a building or dwelling is a question of fact for the jury. See State v. Austin, 883 P.3d 992 (Alaska App. 1994). However, if a defendant breaks into a structure that is neither a building, nor a dwelling, the defendant cannot be charged with burglary. Such was the issue in the following case. In Coleman v. State, the question before the Court of Appeals was whether a bicycle shed constituted a “building” for purposes of the burglary statute. Such a distinction is significant – depending on the definition of building, Coleman is either guilty of two misdemeanors (trespass and theft) or a felony and a misdemeanor (burglary and theft).
407 P.3d 502
Court of Appeals of Alaska.
James Kevin COLEMAN (aka James Kevin Almudarris), Appellant,
v.
STATE of Alaska, Appellee.
October 13, 2017
OPINION
Judge ALLARD.
James Kevin Coleman was convicted, following a jury trial, of second-degree burglary [and other offenses] based on allegations that he broke into a storage shed used by a commercial bike shop and stole two bicycles. …
On appeal, Coleman challenges his conviction for burglary, arguing that the bicycle storage shed was too small to qualify as a “building” for purposes of the burglary statutes.
For the reasons explained in this opinion, we conclude that the bicycle storage shed qualified as a “building” as that term is defined in the burglary statutes.
Accordingly, we affirm Coleman’s convictions for second-degree burglary[.]
Why we conclude that the bicycle storage shed was large enough to qualify as a “building” for purposes of Alaska’s burglary statute
Under AS 11.46.310(a), a person commits burglary if the person “enters or remains unlawfully in a building with the intent to commit a crime in the building.” Alaska Statute 11.81.900(b)(5) defines “building,” in pertinent part, as follows:
“building,” in addition to its usual meaning, includes any propelled vehicle or structure adapted for overnight accommodation of persons or for carrying on business[.]
In the current case, Coleman was convicted of second-degree burglary for breaking into a shed that was used to store bicycles for a business. The shed was a permanent wooden structure with four walls, a floor, and a roof; it contained multiple enclosed storage lockers, secured by individual padlocks. Although the record does not reveal the exact dimensions of the shed, the evidence presented at trial indicated that the shed was approximately chest- to shoulder-high, and the shed could contain 20 to 25 bicycles. To enter the shed to retrieve the bicycles, an average-sized person would need to stoop.
At trial, the general manager of the bicycle shop testified that the shed was used to store bicycles that were brought in for repairs. On an average summer work day, 5 to 6 employees would access the shed to retrieve or store bicycles. The manager testified that employees would typically not need to fully enter the shed to retrieve the bicycles, but that they would sometimes have to crawl all the way into the shed if they were having difficulty getting a bicycle out. The entrance to each storage locker in the shed was kept secured with a padlock and equipped with a break-in alarm.
On appeal, Coleman argues that the shed did not qualify as a “building” for purposes of the burglary statute. Coleman contends that, because the crime of burglary was originally intended to protect dwellings, a structure can only qualify as a “building” for purposes of the burglary statute if it is either designed for human habitation or large enough to “comfortably accommodate people moving around” in it. According to Coleman, because the shed was made to accommodate bicycles and not people, and because an average-sized person would need to stoop to enter the shed, the shed did not qualify as a “building,” and his conviction for second-degree burglary must be reversed.
In response, the State argues that the bicycle storage shed was a building both in the “usual meaning” of the word and because the shed was a structure that had been “adapted” for carrying on the bicycle shop’s business—specifically, the storing and repairing of bicycles. The State concedes, however, that “at some point, a storage unit [may be] so small that it could not reasonably be considered ‘a structure,’ ” and as such, would not be “a building.”
The issue presented here is, therefore, how large a structure must be in order to be considered a “building” for purposes of the burglary statute. Because the statute is ambiguous on this point, we look to the purpose of the legislation and the legislative history for indications of legislative intent.
The definition of “building” codified in AS 11.81.900(b)(5) is derived from Oregon law. Both Alaska and Oregon define “building” broadly, and the two statutory definitions of “building” are essentially the same. As already set out, the Alaska statute defines “building” to include “its usual meaning” as well as “any propelled vehicle or structure adapted for overnight accommodation of persons or for carrying on business.” Likewise, under the Oregon statute, “building” is defined “in addition to its ordinary meaning” as also including “any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodation of persons or for carrying on business therein.”
The legislative history of these statutory definitions indicates that the Alaska and the Oregon legislatures intended these definitions to be expansive. The commentary to the tentative draft of Alaska’s 1978 criminal code revision states that the definition is intended to be “broad enough to include house trailers, mobile field offices, house boats, vessels and even tents used as dwellings.” The commentary to the Oregon Criminal Code likewise explains that the definition of “building” was expanded from the “ordinary meaning of the word” so as to also include “those structures and vehicles which typically contain human beings for extended periods of time, in accordance with the original and basic rationale of the crime [of burglary]: protection against invasion of premises likely to terrorize occupants.”
Coleman relies heavily on the Oregon commentary for his claim that the Oregon and Alaska legislatures intended to limit the definition of “building” to only those vehicles or structures that “typically contain human beings for extended periods of time.” But neither the plain language of the statute nor the legislative history support this claim.
At common law, the crime of burglary required proof that the defendant unlawfully entered a human habitation. Burglary was defined as the breaking and entering of a dwelling at night with the intent to commit a crime therein. The common-law offense of burglary was therefore strictly an offense aimed at protecting the security of habitation rather than property.
But statutory enactments over the past 60 years have changed and expanded the common-law definition of the offense. For most jurisdictions, the requirement that the crime take place at night or that it be directed at a dwelling have disappeared. Instead, most states (including Alaska and Oregon) now define burglary simply as unlawfully entering or remaining in a “building” with the intent to commit a crime therein. The offense is elevated to a higher degree of burglary with increased punishment if the “building” is a “dwelling” or if the defendant’s conduct poses a particular danger to people found within the building.
This transformation is evident in the relevant Oregon caselaw, which has upheld burglary convictions involving storage sheds and storage containers, even though they were designed to accommodate property, not people. For example, in State v. Essig, the Oregon Court of Appeals held that a large potato storage shed qualified as a building under the burglary statute, describing it as a substantial structure and thus a building within the ordinary meaning of the term. Similarly, in State v. Handley, the Oregon Court of Appeals held that a storage locker in an apartment complex’s carport qualified as a building. In State v. Barker, the court held that “self-contained storage units” within a commercial storage facility qualified as “buildings,” and in State v. Webb, the court held that a tractor trailer adapted by a business to store goods likewise qualified as a “building.”
Coleman points out that these Oregon cases all involve storage containers or sheds that are considerably larger than the bicycle storage shed involved in his case. For example, the potato shed in Essig was large enough to “contain several trucks.” Likewise, the tractor trailer in Webb was twenty-five feet long and eight to nine feet wide (although no height was listed). But not all of the Oregon cases involve such large storage structures. The storage lockers in Handley were only four feet wide, nine feet long, and seven feet high. And the dimensions of the storage unit in Barker were essentially unknown, although the court noted that it was “large enough for a human being to enter and move about.”
[…]
Like the storage units in Barker, the storage shed at issue in Coleman’s case appears to fit within the dictionary meaning of the term “building.” Black’s Law Dictionary defines the word “building” as:
[A] structure designed for habitation, shelter, storage, trade, manufacture, religion, business, education, and the like. A structure or edifice inclosing a space within its walls, and usually, but not necessarily, covered with a roof.
Here, the storage shed was a permanent structure with four walls, a roof, a floor, and a fixed entry place through which a person could enter the structure in order to store or retrieve the bicycles placed there by the business.
Coleman contends that, despite these attributes, the storage shed does not qualify as a “building” because the entrance was not high enough for an average-sized person to enter without stooping and it was not big enough for an average-sized person to move around “comfortably.”
We agree with Coleman that, as a general matter, a structure that is too small for a human being to physically enter and occupy with their whole body cannot be considered a “building” that can be burglarized. We note that courts in other jurisdictions have reached a similar conclusion with regard to their burglary statutes.
For example, in Paugh v. State, the Wyoming Supreme Court held that a three-foot display case in a department store was not a “separately secured or occupied portion” of a building for purposes of Wyoming’s burglary statute because the display case was “too small to accommodate a human being.” The Washington Court of Appeals similarly held that a police evidence locker that was 10 inches high, 10 inches wide, and 2 feet deep was too small to qualify as a “building” under Washington’s burglary statute. Coin boxes at a car wash have likewise been found to be too small to qualify as a “building,” as have soft drink vending machines, and a large tool box on wheels.
But these cases all involve containers that are significantly smaller than the storage shed at issue in Coleman’s case. Here, the trial testimony indicated that the bicycle shop’s storage shed was designed to be wide enough, long enough, and tall enough—approximately chest- to shoulder-high—to allow an average-sized person to enter the shed and move about, albeit not necessarily for an extended period of time and not necessarily entirely comfortably. Indeed, the testimony at trial established that human beings did, at times, fully enter the shed to retrieve the bicycles stored inside.
Given these circumstances, and given that the shed otherwise exhibited all of the attributes associated with the term “building” in the usual meaning of the term, we conclude that the storage shed at issue here qualified as a “building” for purposes of Alaska’s second-degree burglary statute. We therefore reject Coleman’s claim that the evidence was insufficient to support his conviction for second-degree burglary on this ground.
[…]
Conclusion
… We … AFFIRM the judgment of the superior court.
Criminal Trespass
Criminal trespass is a related, but distant cousin of burglary. Criminal trespass criminalizes the unlawful intrusion onto someone else’s real property. Like burglary, criminal trespass is graded based on perceived severity.
Criminal Trespass in the Second Degree occurs when a person “enters or remains unlawfully” in or upon a premises. AS 11.46.330(a)(1). Premises means any real property and any building. A simple trespass onto land or in a building will be second-degree criminal trespass. Criminal Trespass in the Second Degree also occurs when a person enters or remains unlawfully in a propelled vehicle. AS 11.46.330(a)(2). This second theory of trespass covers relatively trivial conduct, such as unlawfully entering a vehicle to take a nap. (If a person unlawfully takes a propelled vehicle, the person is not guilty of trespass, but the more serious offense of Vehicle Theft).
Criminal Trespass in the First Degree covers two forms of more serious conduct. AS 11.46.320. The first is entering or remaining upon real property with the intent to commit a crime on the property. For example, if a person enters private land with the intent to take an animal out of season, the person would be guilty of first-degree criminal trespass. Ordinarily, trespass on land would be prosecuted as second-degree criminal trespass, but if the defendant intends to commit a crime on the land, then the trespass is elevated to aggravated criminal trespass (first-degree trespass).
First-degree criminal trespass also occurs when a person enters or remains unlawfully in a dwelling. AS 11.46.330(a)(2). Take note that this conduct would be first-degree burglary if the person entered or remained unlawfully in the dwelling with the intent to commit a crime. But if the person has no intention of committing a crime inside the dwelling, the person is only guilty of aggravated trespass.
For purposes of trespass, “enter or remain unlawfully” means failing to leave the premises after being lawfully directed to do so. AS 11.46.350(a)(2). Thus, a person “remains unlawfully” if the person fails to leave after being informed that they are no longer welcome. Property owners (or their designees) can notify individuals that they are not privileged to enter either through signage (i.e., a “closed” sign) or personal notification (i.e., “you are trespassed”). For unimproved or unfenced land, landowners must post signage in a reasonably conspicuous manner. AS 11.46.350(b). However, if a person enters land with the intent to commit a crime thereon (for example, to commit theft of property on the land), the law does not require that the land be posted. AS 11.46.350(b)(2).
Emergency Use of Premises
The law provides a limited affirmative defense to burglary and criminal trespass. If the unlawful entry was due to an emergency “of immediate and dire need” the person is not guilty. AS 11.46.340. To take advantage of the defense, the defendant must notify local law enforcement or the owner of the unlawful entry once able and within a reasonable amount of time. For example, a person being chased by a bear may break into a cabin to avoid being attacked. But once the bear has left the area, the person must notify the homeowner or local law enforcement of their unlawful entry. Otherwise, the person is guilty of trespass; they are not entitled to claim the affirmative defense. As an affirmative defense, the defendant bears (pun intended) the burden of proving the emergency by a preponderance of the evidence.
1. Coleman v. State, 407 P.3d 502 (Alaska App. 2017) was abrogated on different grounds in Phornsavanh v. State, 481 P.3d 1145 (Alaska App. 2021)). | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/11%3A_Crimes_Against_Property/11.02%3A_Burglary_and_Trespass.txt |
Arson has its roots in property law. Like burglary, arson is primarily a crime against habitation. Unlike burglary, arson protects property against malicious burning. Common law arson was limited to the malicious burning of a dwelling of another. The Alaska legislature expanded this definition beyond dwellings, but continued to criminalize the intentional damage to property by fire or explosion. See generally Hathaway v. State, 925 P.2d 1343 (Alaska App. 1996). Since arson is a property crime, and not a crime against the person, setting one fire and damaging one piece of property is just one arson despite the fire causing multiple victims to be placed in danger and each suffering significant property loss. Id. The gravamen of the offense is the instrumentality used to damage property – fire or explosion.
All jurisdictions consider arson a serious felony. Alaska classifies first-degree arson (Alaska’s most serious arson) as a class A felony offense, punishable by up to 20 years in prison. In fact, several states require convicted arsonists to register with the government, similar to sex offender registration databases. Alaska does not require convicted arsonists to register, but nonetheless, severally punishes the behavior. First-degree arson is an “inherently dangerous felony” under the felony-murder rule. AS 11.41.110(a)(2).
Alaska has three degrees of arson. First-degree arson criminalizes the intentional starting of a fire or causing an explosion that recklessly places another person in danger of serious physical injury. AS 11.46.400. First-degree arson requires a person to intentionally damage any property (their own or someone else’s) by fire or explosion. As a result of the defendant’s intentional act, another person must be placed in danger of serious physical injury. Emergency first-responders qualify as “another person” for purposes of first-degree arson.
The defendant is not required to intend that the person be placed in danger. The defendant need only to ack recklessly – they must disregard a substantial and unjustifiable risk that someone will be placed in danger of serious physical injury. Of course, if they did intend that a person be placed in danger, the crime has also occurred. Thus, if a person intentionally starts a fire and recklessly disregards the risk that a firefighter will be placed in danger while responding, the person will be guilty of first-degree arson even though the person did not intend to harm anyone. Note that there is no requirement that a person actually suffer serious physical injury. Merely placing a person in danger of serious physical injury will suffice. First-degree arson focuses on the danger associated with intentionally set fires – both to innocent victims and first-responders.
Second-degree arson is when a person knowingly damages a building by fire or explosion. AS 11.46.410. Arson uses the same definition of building as burglary. The term building includes all ordinary structures capable of allowing a person to physically enter and occupy it.
Note however, the law recognizes that in some instances, the most economical method of removing a building is to burn it. Such conduct is exempted from second-degree arson if the defendant establishes that no other person had an interest in the property, or if they did, they consented to the burning, and that the burning was for a lawful purpose. AS 11.46.410(b). This is an affirmative defense.
Recognize, however, burning a building to defraud an insurance company would not be a burning for a lawful purpose. Neither would be the burning of a building by one partner when the other partner had not consented to the burning. A similar affirmative defense does not exist for this type of arson.
The law provides two separate ways to commit third-degree arson. First, if a person intentionally starts a fire inside a motor vehicle while the vehicle is on public land, the person is guilty of third-degree arson. This section recognizes the danger associated with vehicle fires on public lands, especially in forested parks and remote areas. Third-degree arson also includes setting another person’s vehicle on fire if the vehicle is on private property. Although the statute does not criminalize setting one’s own vehicle on fire if on private property, the fire, if it spreads and causes additional damage may give rise to criminally negligent burning.
Criminally negligent burning punishes individuals who fail to perceive the danger of starting a fire and the fire damages property. AS 11.46.430. For example, wildfires that are started by human negligence (that is, failing to be careful or not taking adequate protections) can be prosecuted as criminally negligent burning. Recall that criminal negligence requires the defendant to fail to perceive a substantial and unjustifiable risk of harm. AS 11.81.900(a)(4). Criminally negligent burning is a class A misdemeanor unless the defendant has been previously convicted of similar offenses. If the defendant has two prior convictions, then the defendant is considered a recidivist and guilty of a class C felony. AS 11.46.427.
Finally, the law criminalizes a person’s failure to control or report a dangerous fire. AS 11.46.450. This statute creates an affirmative duty on a person to exercise due care to prevent the uncontrolled spread of a fire when the person knows that a fire exists. If a person knows that a fire is endangering life or substantial property and fails to take steps to control the fire or notify authorities of the fire, the person is guilty of a class A misdemeanor. This statute criminalizes a person’s failure to act. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/11%3A_Crimes_Against_Property/11.03%3A_Arson.txt |
Criminal mischief, frequently referred to as vandalism, prohibits damaging or destroying property of another. As you will see, in some cases, criminal mischief can be classified as terrorismi.e., the use of force to intimidate others for social or political reasons. Criminal mischief is divided into five degrees, ranging from first-degree criminal mischief (a class A felony) to fifth-degree criminal mischief (a class B misdemeanor).
In most cases, criminal mischief is a specific intent crime. The defendant must intend to damage, destroy, or interfere with property of another. But the statutory scheme also requires the government to prove that the defendant did not have the right or any reasonable ground to believe they had a right to damage, destroy, or interfere with the property. See AS 11.46.475-486. This absolves the defendant of criminal liability in those situations where the defendant reasonably believed they were entitled to destroy or damage the property.
Criminal Mischief in the First Degree is the most serious form of criminal mischief and covers three forms of destructive conduct. AS 11.46.475. First, if a person intentionally damages an oil or gas pipeline or supporting facility, the person is guilty of first-degree criminal mischief. The law does not require the damage to exceed a certain amount. Any intentional damage to a pipeline or supporting facility is covered. Thus, intentional, but minor, damage to the pipeline and acts of terror that disrupt the nation’s oil production capacity, are covered.
One Guy, One Rifle and an Oil Pipeline, LA Times, October 21, 2001
Although prosecutions of intentionally damaging an oil pipeline are rare, they do occur. In October of 2001, Daniel Lewis shot a hole in the Trans-Alaska Pipeline. The shot punctured the pipeline and caused oil to spill onto the ground. Lewis was convicted of several offenses for his conduct (both in state and federal court), including first-degree criminal mischief, oil pollution, fourth-degree weapons misconduct (for recklessly discharging a firearm), and felon-in-possession. For a complete factual description of the case and the surrounding legal issues, see Lewis v. State, 2007 WL 293079 (Alaska App. 2007).
First-degree criminal mischief also includes a person intentionally causing a substantial interruption of a utility service and a person intentionally damaging property of another by the use of “widely dangerous means,” causing over \$100,000 in damages. AS 11.46.475(a)(2)-(a)(3). There is no requirement that the defendant intend to cause over \$100,000 in damages, only that they intend to damage property of another. Widely dangerous means is defined to mean any difficult-to-confine force such as an avalanche, radioactive material, bacteria, or flood used to cause substantial property damage. AS 11.46.495(8). For example, if an eco-terrorism group disables a dam to interfere with a commercial development, the group members would be guilty of first-degree criminal mischief even if they thought their actions would only cause a minor disruption (assuming that the actual damage exceeded \$100,000). First-degree criminal mischief is punishable by up to 20 years imprisonment.
Criminal Mischief in the Second Degree criminalizes specific forms of tampering with property of another. AS 11.46.482. First, a person is liable if they tamper with an oil or gas pipeline, an airplane, or a helicopter with reckless disregard for the risk of harm to, or loss of, property. The statute does not require that the pipeline, airplane, or helicopter be damaged. The defendant need only tamper with the property. Tamper is defined as interfering with something improperly, meddling with it, or making unwarranted alternations to its existing condition. AS 11.46.495(5). Second, the crime is committed if a person tampers with food, air, water, or drugs with the intent to harm any person. Second-degree criminal mischief is punishable by up to 10 years imprisonment.
Criminal Mischief in the Third Degree can be recognized as the code’s general felony vandalism statute. AS 11.46.482. A defendant who intentionally damages property of another in excess of \$750, is guilty of third-degree criminal mischief, a class C felony offense. The statute also criminalizes some less known conduct. The statute also punishes a person who recklessly creates a risk of damage exceeding \$100,000 to property of another by the use of widely dangerous means. This is similar to first-degree criminal mischief, but does not require that the defendant actually cause the damage. The reckless creation of the risk of damage in excess of \$100,000 is sufficient to create criminal liability. The statute also criminalizes the knowing desecration of a tomb, grave, or cemetery.
Criminal Mischief in the Fourth Degree is a misdemeanor and covers significant, but less serious destructive conduct. First, if a person intentionally damages property of another in excess of \$250 but less than \$750, the person is guilty of fourth-degree criminal mischief. This covers serious but not extensive vandalism. The statute also criminalizes tampering with a fire protection device in a public building, knowingly shooting at a traffic sign, and knowingly accessing a computer, computer system, or computer network without authorization. AS 11.46.484(a).
The least serious criminal mischief is Criminal Mischief in the Fifth Degree. AS 11.46.486. The statute covers low value vandalism (under \$250) and tampering with any property of another with reckless disregard for the risk of harm to the property or with the intent to cause a substantial inconvenience to another. For example, letting the air out of a person’s tires would be covered under this statute if the prosecution could establish that the defendant intended to cause a substantial inconvenience to the owner.
Bergman v. State, 366 P.3d 542 (Alaska App. 2016)
Damage is an essential element of most theories of criminal mischief – if a person intentionally damages property of another, they are guilty of criminal mischief. The value or type of property will determine the degree of criminal mischief. Damage, however, is an undefined term under Alaska law. How is the jury supposed to determine if property was damaged as opposed to improved? The following case answers that question for us.
366 P.3d 542
Court of Appeals of Alaska.
Kevin M. BERGMAN, Appellant,
v.
STATE of Alaska, Appellee.
Jan. 29, 2016.
OPINION
Judge MANNHEIMER.
Kevin M. Bergman was convicted of two counts of third-degree criminal mischief—one count for vandalizing mining equipment belonging to another man, and one count for bulldozing three miles of a wilderness trail located on state and borough land near Fairbanks, widening it into a road that was accessible to motor vehicles.
In this appeal, Bergman contends that the evidence presented at his trial was not legally sufficient to support these two convictions.
[…]
With respect to the count involving the bulldozing of the wilderness trail to widen it and facilitate vehicle access, Bergman argues that the evidence failed to establish that he acted with the culpable mental state required by the statute defining the offense.
Bergman was charged under AS 11.46.482(a)(1). At the time of Bergman’s offense, this statute declared that a person commits the crime of third-degree criminal mischief if, (1) acting with the intent to damage property of another, and (2) having no right to do so, nor any reasonable ground to believe that they have the right to do so, the person (3) damages the property of another in an amount of \$500 or more.
Bergman argues that the evidence at his trial was legally insufficient to establish the first of these elements—i.e., to prove that he acted with the intent to “damage property of another”. Bergman asserts that the evidence unequivocally established that his intention in bulldozing the trail was not to damage it, but rather to improve it.
We reject Bergman’s claim because we conclude that the word “damage” in our criminal mischief statute must be interpreted so as to protect an owner’s interest in using or enjoying the property as the owner sees fit—free from alterations that other people might wish to perform to make the property “better”.
One analogous case we found is People v. Misevis, 155 A.D.2d 729, 547 N.Y.S.2d 439 (1989), where a defendant was convicted of criminal mischief for hiring a contractor to widen a public road without consulting the town government. The contractor removed trees and fences along the roadway and pushed them (as well as other debris) onto adjoining private property.
The defendant was prosecuted under a New York statute that required the government to prove that he acted “with intent to damage property of another person”. The New York appeals court concluded that the jury could reasonably find that this element was proved because the defendant knew that the road belonged to the town, and knew that he had no authority to alter the road.
Similarly, in People v. Suarez, unreported, 32 Misc.3d 132(A), 2011 WL 3249266 (N.Y.App.2011), a New York appeals court upheld the conviction of a defendant who, without permission, decided to beautify his neighbor’s Belgian block wall by spray-painting it to alter its color.
[…]
Bergman’s case is analogous to these decisions. Even under Bergman’s version of events, he intentionally altered the trail without the landowners’ permission, and this alteration significantly impaired the landowners’ interests. (According to the testimony at Bergman’s trial, the two landowners—the state and the borough—spent more than \$18,000 to restore the trail.) Bergman therefore acted with an intent to “damage” the property for purposes of our criminal mischief statute.
The judgement of the superior court is AFFIRMED. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/11%3A_Crimes_Against_Property/11.04%3A_Criminal_Mischief.txt |
Summary
Property crimes frequently result in serious loss and monetary harm to victims, and as a category, include serious offenses like burglary, theft, arson, trespass, and criminal mischief (vandalism). Property is broadly defined to include real property (land), personal property (both tangible and intangible property), and personal services.
Alaska has abandoned the common law categorization of theft crimes (e.g., larceny, embezzlement, and false pretenses) and instead adopted a consolidated theft statute. Theft is now graded into four degrees, largely dependent on the property stolen or its value. Under Alaska’s consolidated theft statutes, theft may be committed in one of six ways. Theft is a specific intent crime. Normally, to commit the crime of theft, the perpetrator must obtain “property of another” with the intent to permanently deprive the owner of the property. Thus, borrowing property with the intent to return it later may not constitute theft under the general theft statute. A thief commits theft if they exercise unauthorized control over another person’s property (if they also have the intent to permanently deprive). For this reason, a person may be guilty of shoplifting even if they do not leave the store. The code also includes various theft-type offenses that have been separated under the code, including vehicle theft, forgery, and scheme to defraud. Each offense contains unique elements that separate it from general theft.
Burglary, similar to arson, is a crime against habitation and is designed to protect property owners. At common law, burglary was limited to breaking and entering into another’s dwelling at nighttime with the intent to commit a felony therein. Alaska has expanded this definition, but some aspects of the common law remain. Burglary always requires an unprivileged entry into a structure and an intent to commit a crime therein. The general burglary statute (second-degree burglary) is the unlawful entry into a building with the intent to commit a crime inside the building. Aggravated burglary (first-degree burglary) occurs when the defendant is armed with a weapon, breaks into a dwelling, or injures an occupant while inside. Aggravated burglary is a class B felony offense punishable by up to 10 years imprisonment. General burglary is a lower-level felony (a class C felony).
Arson is the burning or damaging of property by fire. Alaska grades arson into three degrees. First-degree arson, the most serious, is the intentional setting of a fire or causing an explosion that places someone in danger of serious injury. This includes first-responders like firefighters or police officers. Criminal mischief, more commonly known as vandalism, is damaging, destroying, or interfering with another person’s property. Criminal Mischief may also include acts of terrorism if a person intentionally damages property by “widely dangerous means”, which means a difficult-to-confide force. All criminal mischief statutes require the defendant to damage another person’s property. Damage is measured from the property owner’s perspective, not the defendant’s perspective.
Answers to “You be the Judge” Exercises
From “You be the Judge” in Vehicle Theft:
1. In this case, Brockman had permission to drive the truck off the lot. To be guilty of first-degree vehicle theft, the initial taking of the vehicle must be trespassory. If a person obtains permission to take property fraudulently commits a trespassory taking. Therefore, to prove that Brockman committed vehicle theft in the first degree, the State had to prove that Brockman’s initial taking of the vehicle was accomplished by fraud – that is, that Brockman fraudulently obtained the salesperson’s permission to take the truck. If the jury believed that Brockman falsely represented to the salesperson that he was going to take the truck for a short test drive when he actually intended to use the truck for a substantially longer period of time he was guilty of first-degree vehicle theft (as opposed to second-degree vehicle theft). For more information see Brockman v. State, 2009 WL 692122 (Alaska App. 2009). You can access the opinion using Westlaw Campus Research through the Consortium Library at the University of Alaska Anchorage using your UA credentials.
From “You be the Judge” in Burglary:
1. Dan is not guilty of second-degree burglary. In See Arabie v. State, 699 P.2d 890 (Alaska 1985), the court held that a person who enters a building open to the public and then proceeds to an area inside the building which, though restricted, is not a “separate building”, is not guilty of second-degree burglary since the person did not “enter or remain unlawfully” inside a building for purposes of the second-degree burglary statute. The purpose of the rule is to bring the clause “open to the public” closer to the common law interpretation of burglary. When a person enters property by lawful means, he is only criminally liable for the acts he thereafter commits on the property. However, if a person exceeds the privilege to enter – by remaining in a store after it closed with the intent to commit a theft – would be burglary. Here, Dan entered lawfully. Dan committed a criminal trespass and a theft, but not a burglary. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/11%3A_Crimes_Against_Property/11.05%3A_End-of-Chapter_Material.txt |
Crimes against publicorder include offenses that affect a community’s positive function, like public nuances, group violence, and vice crimes. These crimes are often based on moral or value judgments. In most situations, these crimes are classified as mala prohibita offenses. More than most crimes, these crimes require a balance between citizens’ civil liberties and the right to the community to be free from vagrancy, harassment, and fear.
In this chapter, we explore disorderly conduct, riot, and harassment. Disorderly conduct and harassment are recognized as “catch-all” type criminal statutes – they both criminalize a vast range of offensive and disruptive, albeit minor, conduct.
Disorderly Conduct
Disorderly conduct criminalizes conduct that negatively impacts a community’s “quality of life”. Disorderly conduct is a low-level offense and focuses on relatively minor acts of criminality. Its enforcement, however, is necessary to preserve citizens’ ability to live, work, and travel in safety and comfort. Modern disorderly conduct statutes punish behaviors that are violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disturb the public. Criminal laws addressing this sort of behavior are not new: at common law, breach of peace criminalized activities that disturbed the tranquility of the citizenry. Disorderly conduct has its origins in the common law crime of affray: “[a] noisy fight in a public place … to the terror of onlookers.” See Affray Black’s Law Dictionary (11th ed. 2019). Affray “comes from the same source as the word ‘afraid,’ and [its] tendency to alarm the community is the very essence of this offense.” Rollin M. Perkins & Ronald N. Boyce, Criminal Law 479 (3d ed. 1982).
The modern definition is broader than a noisy fight in public. Alaska’s disorderly conduct statute encompasses a wide range of conduct that disturbs the peace and tranquility of our communities. AS 11.61.110(a).
Figure 12.1 Alaska Criminal Code – Disorderly Conduct
There are seven different ways of committing disorderly conduct. The first two, subparagraphs (1) and (2), prohibit the making of an unreasonably loud noise. “Unreasonably loud” is not a fixed term. It is dependent on the nature of the defendant’s conduct and the circumstances surrounding the conduct – including the location and time of day. AS 11.61.110(b). The noise must disturb a person’s peace and privacy. The legislative commentary notes that this phrase is intended to take into account the circumstances of the noisemaking. The critical question is whether the defendant’s conduct in making the noise constitutes a gross deviation from “the standard of conduct that a reasonable person would observe in the same situation.” AS 11.61.110(b).
For example, signing the national anthem at the top of your lungs using a bullhorn outside a hospital at 2:00 a.m. would likely constitute an unreasonably loud noise, but doing so in a ballpark at noon would not. Likewise, a person attending a sporting event would have a lower expectation of freedom from disturbance than a person attending a poetry reading. A police officer, conducting a bar check, could not claim to be disturbed by noise associated with a bar.
The definition of noise specifically excludes speech that is constitutionally protected. AS 11.61.110(b). Although the statute does not define constitutionally protected speech, it includes protected speech discussed in Chapter 3. The exclusion of protected speech ensures that the statute comports with the First Amendment. Unprotected speech, on the other hand, is included within the statute. Fighting words, obscene speech, and hate speech are not protected forms of speech and appropriately form the basis of a disorderly conduct conviction.
The difference between subparagraphs (a)(1) and (a)(2) is the location of the noisemaking. Subparagraph (a)(1) prohibits noisemaking that disturbs another person not on the same premises, while subparagraph (a)(2) prohibits noisemaking in a public place or on private property. For example, if an apartment dweller disturbs his neighbor’s peace by listening to his music at an unreasonably loud level at 4:00 am, the apartment dweller is guilty of disorderly conduct under (a)(1). On the other hand, if a group of teenagers play loud music in a neighborhood park at 4:00 a.m. and disturb the surrounding homeowners, they are guilty of disorderly conduct under (a)(2).
The next two subsections authorize police to arrest a person for failing to obey a lawful police order. First, refusing to disperse from a public place upon the lawful order of a peace officer when a crime has occurred may be prosecuted under (a)(3). AS 11.61.110(a)(3). The citizen’s refusal to disperse must substantially impede the officer’s ability to effectuate an arrest, investigation, or otherwise endanger public safety. See State v. Martin, 532 P.2d 316 (Alaska 1975). Likewise, refusing to comply with a police officer’s order to leave a private place (a place not open to the public) when the suspect has neither the right of possession nor the express invitation to remain is prohibited under (a)(4). AS 11.61.110(a)(4).
Disorderly conduct includes three final prohibitions. First, the statute prohibits the reckless creation of “a hazardous condition for others by an act which has no legal justification or excuse.” AS 11.61.100(a)(6). This criminalizes creating a dangerous situation without cause, like shouting “fire!” in a crowded movie theater. Such conduct gratuitously risks innocent people getting hurt. Second, the crime of disorderly conduct prohibits intentionally exposing one’s buttock or anus with reckless disregard for the offensive or insulting effect it may have on another person. This subsection criminalizes age-old high school activity of mooning. AS 11.61.100(a)(7).
Finally, disorderly conduct prohibits challenging another person to a fight, or engaging in fighting other than self-defense. AS 11.61.110(a)(5). Fighting, unlike assault, requires a mutuality of intention – that is, a voluntary participation to engage in physical combat. In the following case, Dawson v. State, the court explains the difference between misdemeanor assault (i.e., recklessly causing physical injury to another person) and disorderly conduct (i.e., engaging in fighting other than self-defense). As you read the next opinion, notice how the court defines “fighting” using the common law crime of “affray.”
Dawson v. State, 264 P.3d 851 (Alaska App. 2011)
264 P.3d 851
Court of Appeals of Alaska.
Ginnie DAWSON, Appellant,
v.
STATE of Alaska, Appellee.
No. A–10137.
Oct. 21, 2011.
OPINION
MANNHEIMER, Judge.
This case requires us to construe one clause of our disorderly conduct statute, AS 11.61.110—specifically, subsection (a)(5) of the statute, which declares that a person commits disorderly conduct if the person “engages in fighting other than in self-defense”. The precise issue is whether the phrase “engages in fighting” encompasses all instances where one person strikes another—or whether, instead, this phrase is limited to situations where two or more people share a mutual intent to trade blows (or at least attempt to trade blows).
For the reasons explained in this opinion, we conclude that, for purposes of this subsection of the disorderly conduct statute, “fighting” requires a mutuality of intention, and therefore this subsection of the statute does not cover all situations where one person strikes another.
Underlying facts
The Appellant in this case, Ginnie Dawson, was charged with fourth-degree assault under AS 11.41.220(a)(1) for hitting her domestic partner, Patrick Meyer, with her fists and throwing a baking pan at him. To prove this assault charge, the State had to establish that Dawson “recklessly cause[d] physical injury to [Meyer]”.
As used in our criminal code, the term “physical injury” means “physical pain or an impairment of physical condition”. The State alleged that Dawson’s acts of striking Meyer with her fists and with the baking pan constituted fourth-degree assault because this conduct caused Meyer to suffer physical pain.
At trial, Dawson conceded that she struck Meyer, but she contended that she had not caused him physical pain. Meyer took the stand and agreed that he had not suffered pain (other than emotional pain) during the attack.
Based on this testimony, Dawson’s attorney asked the trial judge to instruct the jury on the lesser offense of disorderly conduct as defined in AS 11.61.110(a)(5)—“engag[ing] in fighting other than in self-defense”. The defense attorney argued that if the jury believed Meyer’s testimony that he had not suffered pain, then the State would have proved only that Dawson fought with Meyer—and, thus, disorderly conduct under subsection (a)(5) would be the proper verdict.
The trial judge refused to instruct the jury on disorderly conduct because (1) the judge concluded that “fighting” meant a mutual physical struggle between two or more people, and (2) there was no evidence that Meyer and Dawson engaged in mutual struggle—i.e., no evidence that Meyer intended to fight Dawson, or that he responded with physical force to Dawson’s blows.
The jury convicted Dawson of fourth-degree assault, and Dawson now claims that the trial judge committed error by refusing to instruct the jury on disorderly conduct as a potential lesser included offense.
This Court’s decision in Hedgers v. State
As we have just explained, the primary issue raised in this appeal is whether the phrase “engages in fighting” (as used in subsection (a)(5) of the disorderly conduct statute) includes all situations where one person strikes another, even though there is no mutual combat—i.e., even though the second person does not wish to engage in a physical struggle, and does not respond with force. This Court has already directly addressed and answered this question in an unpublished opinion: Hedgers v. State, Alaska App. Memorandum Opinion No. 4056 (June 2, 1999), 1999 WL 349062.
The defendant in Hedgers was convicted of disorderly conduct under subsection (a)(5) of AS 11.61.110—i.e., for engaging in fighting other than in self-defense—based on evidence that, during a verbal dispute with another woman, she used her knee to kick this other woman in the leg. Hedgers, slip opinion at 1–2, 1999 WL 349062 at *1.
On appeal, Hedgers argued that she was wrongly convicted because “fighting” required mutual combat. This Court rejected Hedgers’s argument. We held that the term “fighting” encompassed any “physical struggle”—more specifically, that it included “those fights that are one-sided due to choice, surprise by the aggressor, or simply the superior ability of a participant.” Hedgers, slip opinion at 2–3, 1999 WL 349062 at *2.
Thus, in Hedgers, this Court rejected the interpretation of “fighting” that Dawson’s trial judge employed in the present case. Instead, Hedgers adopted the interpretation that Dawson proposes: the interpretation that “fighting” includes all instances where one person knowingly strikes another, even though the other person does not wish to fight and does not respond with force.
Given the underlying facts of Dawson’s case, and given the fact that the primary dispute between the parties at Dawson’s trial was whether Meyer suffered physical pain as a result of Dawson’s striking him, it would appear that, under our decision in Hedgers, Dawson was indeed entitled to a jury instruction on the lesser offense of disorderly conduct.
However, for the reasons explained in this opinion, we conclude that we were mistaken in Hedgers when we declared that “fighting” does not require any degree of mutuality. We now hold that the phrase “engages in fighting” encompasses only those situations where the participants share a mutual purpose or understanding that they will trade blows or attempt to trade blows.
The origins of subsection (a)(5) of our disorderly conduct statute
The common law provided criminal penalties for direct assaults or batteries upon another person, but it also provided penalties for people who breached the public peace with violent, tumultuous, or otherwise disorderly conduct, even when that conduct did not constitute a punishable assault or battery.
If a group of people assembled for the purpose of engaging in violent or tumultuous behavior (and then engaged in that behavior), they were guilty of “riot”. This offense (as generally defined) consisted of “planned and deliberate violent or tumultuous behavior involving a confederation of three or more persons”. Most American jurisdictions have enacted statutory versions of the offense of riot.
A lesser common-law crime—“affray”—applied to breaches of the peace by people who had come together in a public place by chance or otherwise innocently, and then a quarrel arose which prompted them to engage in violent or tumultuous behavior. In such circumstances, the participants “[were] not guilty of riot, but of sudden affray only”, because “[the] breach of the peace happened unexpectedly without any previous intention concerning it.” Affray was defined as “a mutual fight in a public place to the terror or alarm of [other] people”.
To constitute an “affray”, the parties’ intention or willingness to fight had to be mutual. If one person unlawfully attacked another, and the other person used force in an effort to defend himself, the instigator was guilty of assault and battery, while the other participant was entirely innocent of crime. In such circumstances, there was no affray.
Moreover, with respect to both of these offenses—riot and affray—the gravamen of the offense was not any injury to persons or property that might ensue, but rather the present breach of the public peace and the attendant risk of terror or alarm that the violent or tumultuous behavior might cause.
As is true with the offense of riot, most American jurisdictions have codified the common-law crime of affray. Sometimes the codified crime is called “affray”, but often state legislatures insert this offense into one of the provisions of their disorderly conduct statutes. The Alaska territorial legislature took this latter approach: they enacted a disorderly conduct statute in 1935 which, among other things, prohibited “tumultuous conduct in any public place or private house to the disturbance or annoyance of any person”. 1949 Compiled Laws of Alaska, § 65–10–3.
Following statehood, this definition was carried forward in former AS 11.45.030, a statute entitled “Disorderly conduct and disturbance of the peace”. As originally enacted (that is, before the 1973 amendments that we describe later), subsection (2) of this statute provided that a person committed disorderly conduct if they:
[were] guilty of tumultuous conduct in a public place or private house to the disturbance or annoyance of another, or [were] otherwise guilty of disorderly conduct to the disturbance or annoyance of another[.]
We note that this statute was broader in scope than the common-law crime of affray, in that it applied to tumultuous or disorderly conduct not only in public places but also in private houses.
During the early days of Alaska statehood, various city governments also enacted disorderly conduct ordinances that covered the type of conduct which would have been an “affray” at common law. For example, the Anchorage disorderly conduct ordinance (in its 1970 version) declared, in pertinent part, that it was unlawful “for any person[,] with purpose and intent[,] to cause public inconvenience, annoyance or alarm, or recklessly create a risk [of these things] by … [e]ngaging in fighting or threatening, or in violent or tumultuous behavior”.
But in 1972, in Marks v. Anchorage, 500 P.2d 644 (Alaska 1972), the Alaska Supreme Court ruled that this Anchorage ordinance was unconstitutional—and the supreme court’s decision led to a complete revision of the state disorderly conduct statute.
In Marks, the supreme court concluded that the Anchorage disorderly conduct ordinance was unconstitutionally vague both in its prefatory language (“cause public inconvenience [or] annoyance”) and in its use of the phrase “violent or tumultuous behavior”. Id., 500 P.2d at 645, 652–53. Although, technically speaking, the Marks decision dealt only with the Anchorage ordinance, the Alaska Legislature could see the writing on the wall, so they completely rewrote the state disorderly conduct statute the following year (1973). (The Alaska Supreme Court indeed struck down the pre–1973 version of the state statute in Poole v. State, 524 P.2d 286, 289 (Alaska 1974).)
In the 1973 revision of AS 11.45.030, the phrases “tumultuous conduct in a public place or private house to the disturbance or annoyance of another” and “disorderly conduct to the disturbance or annoyance of another” were replaced by a series of more specific provisions. For purposes of the present discussion, the pertinent clause of this revised, post–1973 version of the disorderly conduct statute is subsection (a)(3). This subsection declared that a person was guilty of disorderly conduct if “in a public or private place” [the person] “challenge[d] another to fight, or engage[d] in fighting other than in self-defense[.]”
In other words, subsection (a)(3) of the post–1973 disorderly conduct statute is the source of the language that is now found in subsection (a)(5) of our current disorderly conduct statute, AS 11.61.110—the statute that we must construe in this appeal.
The treatment of fighting and other breaches of the peace under Alaska’s current criminal code
The Alaska criminal code was completely rewritten in the late 1970s. The drafters of the new criminal code proposed a series of three statutes (all of them contained in Title 11, chapter 61) to cover the general subject of conduct that threatens the peace. See Alaska Criminal Code Revision, Tentative Draft, Part 5 (1978), pp. 78–89. These three statutes were later enacted as AS 11.61.100, AS 11.61.110, and AS 11.61.120.
AS 11.61.100 defines the felony of “riot”. Under this statute, a person commits riot “if, while participating with five or more others, the person engages in tumultuous and violent conduct in a public place and thereby causes, or creates a substantial risk of causing, damage to property or physical injury to a person.”
Moving down in degree of seriousness, AS 11.61.120 defines the misdemeanor of harassment. The pertinent portions of this statute are subsections (a)(1) and (a)(5), which declare that a person commits harassment if the person “insults, taunts, or challenges another person in a manner likely to provoke an immediate violent response”, or if the person “subjects another person to offensive physical contact”.
The first clause of the statute is a codification of the common law. At common law, a person was chargeable with a breach of the peace if the person directed opprobrious or abusive language toward another person with the intent to incite the other person to violence, or under circumstances where the language was likely to provoke immediate violence. The second clause of the statute was intended to cover minor shoves, slaps, or kicks that would not qualify as assaults under AS 11.41.200–230 because they do not inflict “physical injury”. This latter clause was also intended to cover touchings of a sexual nature that would not qualify as sexual assaults or sexual abuse under AS 11.41.410–440.
Finally, AS 11.61.110 defines the class B misdemeanor of “disorderly conduct”. As we have already noted, the pertinent portion of this statute (for purposes of the present appeal) is subsection (a)(5), which declares that a person commits disorderly conduct if, “in a public or private place, the person challenges another to fight or engages in fighting other than in self-defense”. This is simply a reiteration of subsection (a)(3) of the prior statute (as it was rewritten in 1973).
Although disorderly conduct is designated a class B misdemeanor (a class of offense which normally carries a maximum penalty of 90 days’ imprisonment), the legislature has specified that the sentence of imprisonment for disorderly conduct can be no more than 10 days. See AS 11.61.110(c).
Why we conclude that the phrase “engages in fighting other than in self-defense” requires proof of a mutual intention or willingness among the participants
We now return to the issue of statutory interpretation presented in Dawson’s case. Under AS 11.61.110(a)(5), a person commits disorderly conduct if the person “challenges another to fight or engages in fighting other than in self-defense”. The question is whether the phrase “engages in fighting” encompasses any instance where one person strikes another—or whether this phrase applies only to situations where the parties share a mutual intention or understanding that they will exchange blows, or at least attempt to exchange blows.
As we have explained, this statutory language was formulated in 1973, when the legislature rewrote the disorderly conduct statute in response to the supreme court’s decision in Marks v. Anchorage. At that time (i.e., before the enactment of our current criminal code), Alaska law contained a separate statute—former AS 11.15.230—that punished all acts of assault and battery, including all instances where one person unlawfully struck another person.
Former AS 11.15.230 declared that any person who unlawfully assaulted, threatened, or struck another person was guilty of a misdemeanor and subject to imprisonment for up to six months. As our supreme court noted in Rivett v. State, 578 P.2d 946, 948 (Alaska 1978), a person could commit assault and battery under this former statute by throwing “a simple punch [to] the nose, by means of a bare fist”.
Because the crime of “assault and battery” as defined in former AS 11.15.230 already covered any act of unlawfully striking another person, the legislature must have intended to deal with a different social problem when, in 1973, they rewrote the disorderly conduct statute and included a subsection that prohibited “fighting other than in self-defense”.
We believe that the legislature’s intention is explained by the statutory history that we recited in the preceding section of this opinion.
As we have already described, prior to the 1973 amendments prompted by Marks v. Anchorage, Alaska’s disorderly conduct statute prohibited all “tumultuous conduct in a public place or private house to the disturbance or annoyance of another”. This prohibition on “tumultuous conduct” was derived from the common-law crime of affray, which covered any sudden or unplanned breach of the peace by fighting or other tumultuous behavior.
But in Marks, the Alaska Supreme Court struck down a similarly worded municipal disorderly conduct ordinance—in part, because it employed the phrase “violent or tumultuous behavior”. Id., 500 P.2d at 645, 652–53. This prompted the Alaska Legislature to revise the state disorderly conduct statute by deleting the phrase “tumultuous conduct” and substituting more concrete definitions of the prohibited conduct. Among these more concrete definitions were “challeng[ing] another to fight” and “engag[ing] in fighting other than in self-defense”.
Given the fact that this prohibition on “fighting” has its origins in the common-law offense of affray (which required a mutual intent or willingness to fight), and given the fact that a separate existing statute prohibited all batteries, one can infer that the legislature was describing situations of mutual fighting, rather than all situations where one person unlawfully strikes another.
This inference is strengthened by the fact that the phrase “engages in fighting” is immediately preceded by the phrase, “challenges another to fight”. The act of “challenging” another to fight clearly involves daring or inviting someone else to engage in mutual fighting. And because this first clause of subsection (a)(5) employs the word “fight” in this sense of “mutual fighting”, one can infer that the legislature was referring to the same concept—mutual fighting—when they used the phrase “engages in fighting” in the second clause of the statute.
Under the rule of statutory construction known as noscitur a sociis (literally, “it is known by its associates”), we … conclude that the phrase “fighting other than in self-defense” refers to the same type of mutual fighting as the phrase “challenges another to fight”. That is, both phrases refer to a physical struggle or combat among willing participants.
This conclusion is also bolstered by the disparity in the punishment for assault, and even the punishment for harassment, versus the punishment for disorderly conduct. [Misdemeanor assault is punishable up to one year in jail whereas the maximum punishment for disorderly conduct is 10 days.]
[…]
The fact that a person who is found guilty of disorderly conduct for “engaging in fighting other than in self-defense” faces such a minimal penalty compared to the sentences that can be imposed for assault or even harassment suggests to us that the legislature viewed disorderly conduct as a significantly lesser offense. But this view of disorderly conduct would make little sense if “fighting” included all instances where one person unlawfully strikes or offensively touches another person. The disparity in punishment suggests that the legislature took a narrower view of “fighting”—the view that “fighting” referred to instances of fighting between mutually willing participants.
If the legislature viewed “fighting” in this more limited sense, then it would be reasonable for the legislature to impose greater punishments for assault and for harassment (which includes non-consensual offensive touchings, as well as “insults, taunts, and challenges” that are likely to provoke immediate violence). When an assault leads to combat, it will be a combat where one participant is at fault and the other participant is exercising the right of self-defense. And when harassment leads to combat, it will be a combat where one participant is significantly more at fault than the other. In cases of mutual “fighting”, on the other hand, there is no primary offender or victim; this conduct is punished only because the turmoil of the fight could breach or threaten the public peace.
[…]
For these reasons, we conclude that the phrase “engages in fighting other than in self-defense” (as used in subsection (a)(5) of our disorderly conduct statute) does not include one-sided attacks of one person upon another—i.e., acts punishable as assault, or acts punishable as harassment under AS 11.61.120(a)(5) (subjecting another person to offensive physical contact). Rather, the phrase “engages in fighting other than in self-defense” is limited to altercations where the parties share a mutual intent or willingness to fight.
It is possible that in some cases where a defendant is charged with assault, the evidence may give rise to a reasonable possibility that the defendant is not guilty of assault but rather of the lesser crime of disorderly conduct under the “engages in fighting” clause of AS 11.61.110(a)(5). It is also possible that the evidence may give rise to a reasonable possibility that the defendant is guilty of the lesser crime of harassment under either AS 11.61.120(a)(1) (insulting, taunting, or challenging another person in a manner likely to provoke an immediate violent response) or AS 11.61.120(a)(5) (subjecting another person to offensive physical contact).
If the government has not already charged these lesser crimes as alternative offenses, and if the evidence presented at trial is sufficient to support the conclusion that the defendant is not guilty of assault but is instead guilty of one or (conceivably) both of these lesser offenses, then either party may request a jury verdict on these lesser offenses. In such cases, the jurors should be instructed that they cannot return a verdict on a lesser offense unless they have reached unanimous agreement that the defendant should be acquitted of the charged assault.
[…]
Conclusion
The judgement of the district court is AFFIRMED.
Riot
Riot is violent, dangerous group behavior. Collective, group action can quickly become out-of-control mobs destroying property and injuring scores of innocent victims. When groups begin to engage in dangerous and violent behavior, the individual members are guilty of riot. Before a person can be convicted of the crime of riot, however, they must participate with five or more people in tumultuous and violent conduct in a public place, which creates a substantial risk of causing property damage or personal injury. AS 11.61.100. Riot is a low-level felony.
Riot is a very restrictive statute. The law requires that the rioter’s conduct be both tumultuous and violent. It must be more than just a loud noise or a minor disturbance. It must involve ominous threats of physical injury or property damage. Merely tumultuous conduct is insufficient and likely interferes with a person’s rights of speech and assembly. See e.g., Marks v. Anchorage, 500 P.2d 644, 653-54 (Alaska 1972). The phrase “tumultuous behavior,” standing alone, encompasses “conduct ranging from actual violence to speaking in a loud and excited manner.” Id. Mere tumultuous behavior leaves an officer with unfettered discretion that infringes upon a citizen’s rights of speech and assembly. Before a person is guilty of riot the group must engage in violent or destructive behavior.
As a practical matter, in the event of a riot, rioters are frequently arrested for the crimes that are actually committed, or attempted to be committed, and not riot (assuming that they are even arrested). For example, if a rioter throws a firebomb against a building or assaults an innocent bystander, the rioter is likely to be charged with arson and assault, respectively, and not necessarily, riot. Likewise, a mob that overturns a police car in the middle of the street will be prosecuted for criminal mischief, irrespective of whether the mob is also charged with riot. Riot, although an important criminal offense, is difficult to prove and rarely charged.
Harassment
Harassment criminalizes serious, but still somewhat trivial, conduct that interferes with a person’s personal autonomy. Harassment, like disorderly conduct, is a “catch-all” type of criminal statute. Harassment, unlike disorderly conduct, focuses on conduct that is intentionally harassing or annoying to another person – usually through a series of specific actions like spitting, taunting, prank phone calls, unwanted sexting, cyberbullying, or offensive touching. Accidental annoyance does not qualify. The crime is broken into two degrees, both of which are misdemeanors. Compare AS 11.61.118(a)(b) and 11.61.120(b).
Harassment is a specific intent crime – the defendant must act with the “intent to harass or annoy” another person. First-degree harassment, the most-serious degree of harassment, covers relatively specific conduct. First, it only occurs if a person subjects another person to offensive physical conduct by throwing bodily fluids onto another person. AS 11.61.118(a)(1). Bodily fluids include human and animal blood, mucus, saliva, semen, urine, vomitus, or feces. As you can see, the statute covers both the person who spits on another person at a baseball game and the inmate who throws feces at correctional officers. Both are guilty of first-degree harassment.
The crime is also committed, however, if a person touches another person’s genitals or buttocks, over clothing, without consent. AS 11.61.118(a)(2). This offensive conduct is not “sexual conduct” for purposes of a sex offense. See State v. Mayfield, 442 P.3d 784 (Alaska App. 2019). This would include a nonconsensual pinch of a stranger’s buttocks in a crowded elevator. Recall Townsend, the individual who grabbed Tim’s genitals in the downtown Juneau bar. Townsend was only guilty of first-degree harassment, not sexual assault. State v. Townsend, 2011 WL 4107008 (Alaska App. 2011).
Second-degree harassment covers a much broader range of conduct. The statute prohibits insulting, taunting, or challenging another in a manner likely to provoke an immediate and violent response. This subsection criminalizes fighting words. Fighting words are more than merely challenging another person to fight (such conduct would constitute disorderly conduct). This subsection focuses on whether a reasonable person would be provoked into an immediate breach of peace. AS 11.61.120(a)(1). Recall it is virtually impossible to prosecute someone for taunting a police officer with fighting words. See e.g. Anniskette v. State, 489 P.2d 1012 (Alaska 1971). No reasonable police officer would be provoked by mere words. The average citizen, on the other hand, is not expected to show such restraint.
The communication need not occur face-to-face. The statute includes sending an electronic communication that insults, taunts, challenges, or intimidates a minor and places the minor in reasonable fear of physical injury. AS 11.61.120(a)(7). Cyberbullying would fall within this subsection.
The statute also criminalizes making annoying, threatening, or obscene phone calls or other electronic communications. A person may not call another person with the intent to impair the ability of the person to place or receive telephone calls. AS 11.61.120(a)(2). A person may not make repeated telephone calls at extremely inconvenient hours. AS 11.61.120(a)(3). And, a person may not make a single obscene or threatening telephone call. AS 11.61.120(a)(5). All of this conduct is captured by second-degree harassment. These subsections are intended to stop prank and harassing phone calls. The advent of call-waiting and cellular phones have largely rendered the statute superfluous, but can still be used to deter repeated and extremely inconvenient phone calls.
Sharing or sending sexually explicit photos or videos without the consent of the victim falls with second-degree harassment. Compare AS 11.61.120(a)(6) and (a)(8). Specifically, the statute prohibits sharing images or videos that show “the genitals, anus, or female breast” of another person without the person’s consent. AS 11.61.120(a)(6). Put another way, if a person shares otherwise private sexually explicit images or videos, the person is guilty of second-degree harassment. This conduct is sometimes referred to as revenge porn. The statute also criminalizes the sending of unwanted sexual images or videos. AS 11.61.120(a)(8).
Finally, the statute prohibits subjecting another person to offensive physical contact. AS 11.61.120(a)(5). While this is similar to the prohibition set forth in first-degree harassment, the contact does not involve another person’s genitals, buttocks, or female breast. Instead, the conduct would include minor shoves or slaps that do not qualify as “physical injury” under assault. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/12%3A_Crimes_Against_Public_and_Social_Order/12.01%3A_Disorderly_Conduct_Riot_and_Related_Offenses.txt |
From drive-by shootings to brass knuckles, Alaska weapon offenses cover a wide array of misconduct. Some are serious and some are relatively minor. One constant is that they all involve a “weapon” under prohibited circumstances. Not all weapons are equal, however: some are inherently deadly (e.g., a firearm), some are only dangerous if used in a particular manner (e.g., bear spray), and some are relatively common (e.g., a steak knife).
Weapon offenses share a second commonality. Under Alaska law, there is no “victim” to a weapon offense. While a person may be seriously injured as a result of a weapon, the harm is punished under other criminal code provisions (namely, assault). Weapon offenses do not penalize the resulting harm, injury, or damage. They penalize the danger created by the weapon.
This chapter does not attempt to analyze each different weapon statute. Given the sheer amount of misconduct that is covered it is difficult to summarize beyond simply outlining the individual statutes. Instead, this chapter explores some key categories of the various types of conduct that constitute Misconduct Involving a Weapon (the name for weapon offenses). You will notice that offenses are graded into five degrees. The most serious is a class A felony, whereas the least serious is a class B misdemeanor. Compare AS 11.61.190 and 11.61.250.
Inherently Dangerous Conduct
In response to the belief that violent gang activity was plaguing Alaskan communities in the 1990s, the Alaska Legislature passed a series of laws designed to increase the penalties associated with the use of firearms. The belief was that criminal street gangs were responsible for significant violence in Alaska’s urban communities, and stiffer penalties for gun use would assist police in stopping the violent behavior.
As noted during the 1996 legislative process,
[The proposed changes were] introduced in response to the rapid escalation of violent gang activity throughout Alaska. [The staff member] noted that the amount of gang related violence [in 1996] and previous. In 1995, there were more than four gang-related murders committed in Anchorage, as well as, numerous gang-related hold-ups and drive by shootings, and other criminal activities by gangs. Present intelligence from the Anchorage Police Department notes that there are over 463 gang members active in Anchorage. The central purpose behind this bill [to amend weapon offenses] is to give law enforcement and prosecutors the tools that they desperately need to deal with the increased presence of gangs in Alaska.
See Minutes from House Judiciary Comm., 1995-1996 Leg., 19th Sess. (Alaska March 27, 1996) (statement of S. Ernouf, staff to bill sponsor).
The most significant change was to Misconduct Involving a Weapon in the First Degree, which created a class A felony offense for discharging a firearm from a motor vehicle under circumstances creating a substantial and unjustifiable risk of injury to another person or damage to property. 11.61.190(a)(2). The statute targets drive-by shootings.
The gravamen of the offense is the danger created by the firearm, not the injury. Drive-by shootings create generalized public danger, regardless of whether a person is struck, injured, or placed in fear. If multiple people are injured or placed in fear by a drive-by shooting, the defendant will likely face punishment for both first-degree weapons misconduct and multiple counts of assault. See e.g., Young v. State, 331 P.3d 1276, 1284 (Alaska App. 2014).
Less serious weapon offenses criminalize shooting from a vehicle under circumstances that do not create a risk of injury or property damage. Misconduct Involving a Weapon in Third Degree, a class C Felony, prohibits the reckless discharge of a firearm from a motor vehicle under circumstances that do not rise to the level of a drive-by shooting. AS 11.61.200(a)(10). This would cover circumstances where a person randomly shoots a firearm into the air while driving. While such conduct is still extremely dangerous and unnecessary, the shooting is not done to instill fear or injury.
Misconduct Involving a Weapon in the Fourth Degree, a misdemeanor, prohibits shooting from, on, or across a highway. AS 11.61.210(a)(2). It also prohibits a person recklessly discharging a firearm that creates a risk of injury or damage to property. AS 11.61.210(a)(3). The statute is similar to reckless endangerment: it does not require that injury or damage occur. Whereas first-degree weapon misconduct is targeted at particular conduct – i.e., drive-by shootings – these lesser offenses penalize serious, but less dangerous behavior.
To further combat gang violence, the Alaska legislature created a subsection within Misconduct Involving a Weapon in the Second Degree that prohibits knowingly discharging a firearm in the direction of a building or dwelling. AS 11.61.195(a)(3). The law intended to ensure punishment for shooting at a house regardless of whether the house was occupied. See Minutes from Senate Judiciary Comm., 1997-1998 Leg., 20th Sess. (Alaska March 26, 1997) (sponsor statement). Unlike first-degree weapon misconduct, second-degree weapon misconduct neither requires proof that the shooting created a substantial risk of injury or death nor shooting from a vehicle.
As you review these statutes notice how they collectively punish the danger associated with the intentional or reckless discharge of firearms. Whenever a firearm is used there is a risk of an errant bullet causing injury, damage, or even death. It is a fundamental rule of gun safety. It is all inherently dangerous, but punishment is graded based on the level of risk the defendant’s conduct creates.
Drugs and Guns
Illegal drug trafficking, and the underworld in which it thrives, functions on fear and the threat of violence, at least in the eyes of the Alaska Legislature. Firearms are the drug dealer’s tool of choice, and firearms are necessary to protect both product and profit. The legislature has created a specific statutory scheme that severely punishes individuals who use or possess a firearm during a felony drug offense. These so-called drug and gunlaws target the dangerous relationship between firearms and drug trafficking. Using or possessing a gun during a felony drug offense substantially increases the risk of death or serious physical injury for already dangerous conduct.
The first-degree weapon misconduct statute penalizes the use of a firearm during a felony drug offense. Possession of a firearm during a felony drug offense constitutes Misconduct Involving a Weapon in the Second Degree. Compare AS 11.61.190(a)(1) and 11.61.195(a)(1). This distinction is significant. First-degree weapons misconduct is a Class A felony, punishable up to 20 years imprisonment, whereas second-degree weapon misconduct is a Class B felony, punishable up to 10 years imprisonment.
Misconduct Involving a Weapon in the Second Degree contains two important limitations before authorizing punishment for “simple gun possession” during a drug offense. First, the code only criminalizes firearm possession during a felony drug offense. Misdemeanor drug offenses are excluded from the statute. Thus, it is generally not illegal for a defendant to possess a firearm while at the same time possessing personal use amounts of drugs. See e.g., AS 11.71.050(a)(4)
Second, the law requires a nexus between the firearm possession and the felony drug offense. The “mere” possession of a firearm during a drug offense is insufficient. Collins v. State, 977 P.2d 741 (Alaska App. 1999). Firearms are particularly common in Alaska, and many Alaskans possess firearms to protect their homes and provide for their families. The Legislature did not intend to criminalize personal home protection firearms simply because a person may also be engaged in a felony drug offense. Murray v. State, 54 P.3d 821, 825 (Alaska App. 2002).
To prove a nexus between the firearm possession and the felony drug offense, the government must establish the defendant’s possession of the firearm furthered the felony drug offense in some manner. See Collins, 977 P.2d at 753. The defendant’s possession of the gun must somehow aid, advance, or facilitate the defendant’s overall criminal drug trafficking objective. Multiple factors may be considered, including (1) the type of drug activity conducted, (2) the accessibility of the firearm, (3) the type of firearm, (4) whether the firearm was stolen, (5) the status of the defendant’s possession (legitimate or illegal), (6) whether the firearm was loaded, (7) the proximity of the firearm to drugs or drug profits, and (8) the time and circumstances under which the gun was found. See Murray, 54 P.3d at 824.
The jury is asked to weigh all of these factors, and any additional information, in determining whether the defendant’s possession furthered the drug enterprise or whether the defendant simply possessed a gun in addition to drug trafficking. This determination is fact specific. No one factor is determinative.
Prohibited and Untraceable Weapons
Certain weapons, fully automatic weapons for example, are illegal under both federal and state law. Alaska law classifies such weapons as prohibited weapons. Alaska’s law is patterned after the National Firearms Act. The statute prohibits the manufacture, possession, transportation, sale, or transfer of a prohibited weapon. AS 11.61.200(a)(3). Prohibited weapons include rockets, bombs, silencers/suppressors, automatic weapons, sawed-off shotguns, or grenades. AS 11.61.200(h)(1). In the eyes of the Alaska legislature, “[s]uch weapons have little or no legitimate function, are unnecessary for protection, and are not commonly used for commercial or recreational purposes.” See commentary from Senate Journal Supp. No. 47 at 100-122. Prohibited weapons are used in furtherance of crime and create a substantial – and unnecessary – risk of harm to others. Two important exceptions exist: first, weapons registered under the National Firearms Act are exempt. AS 11.61.200(c). Second, police officers acting within the scope and authority of their employment are exempt from prosecution. Thus, if a law enforcement agency has authorized an officer to use an otherwise prohibited weapon – e.g., a grenade – the officer is exempt from prosecution. AS 11.61.200(e).
Individuals are also prohibited from removing or destroying a firearm’s serial number with the “intent to render the firearm untraceable”. AS 11.61.200(a)(5). The law does not criminalize the possession of a firearm with an obliterated serial number unless the government can prove that the purpose of the altered serial number was to render it untraceable. AS 11.61.200(a)(6). The government normally proves this culpable mental state through police officer expert testimony. See e.g., Collins v. State, 977 P.2d 741, 745 (Alaska App. 1999).
Certain non-firearms are also prohibited, but not at the felony level. Possessing, making, selling, or transferring metal knuckles is a misdemeanor offense. AS 11.61.210(a)(4). Sometimes referred to as brass knuckles, metal knuckles mean “a device that consists of finger rings or guards made of a hard substance and designed, made, or adapted for inflicting serious physical injury or death by striking a person.” AS 11.81.900(b)(37). See Figure 12.2 below.
Figure 12.2 Metal Knuckles
The above photograph was the subject of an appeal in Thrift v. State, 2017 WL 2709732, at *2 (Alaska App. June 21, 2017) where the defendant argued that the above weapon did not constitute “metal knuckles” since a short knife was affixed to the end. Thrift contended that the weapon should be classified as a “knife”. The court rejected Thrift’s argument. “Under Thrift’s interpretation of the statute, the addition of a knife blade to an illegal weapon—a change that makes the illegal weapon even more dangerous—would render the formerly illegal weapon into a legal one. This is illogical.” See id.
Prohibited Persons
Several statutes prohibit certain classes of individuals from possessing weapons, including those convicted of a felony offense, those who are intoxicated, and those who are the subject of a domestic violence protective order. Each class is discussed in turn below.
Felon-In-Possession
Alaska has a relatively unique felon-in-possession law. A convicted felon is only prohibited from possessing a “concealable firearm” or residing in a dwelling where a concealable firearm is stored. AS 11.61.200(a)(1) & (a)(10). At their core, felon-in-possession statutes are anticipatory-type offenses. They seek to prevent harm before it occurs, namely future violent crime. See Davis v. State, 499 P.2d 1025, 1038 (Alaska 1972) reversed on other grounds 415 U.S. 308 (1974).
Given the definition of a firearm, it is immaterial whether the gun is loaded or unloaded, or even functional. AS 11.81.900(a)(1). The weapon must have been designed to discharge a shot by the force of gunpowder; it need not be capable of discharging the shot. A pellet gun, for this reason, is not a firearm, even though it would constitute a “dangerous instrument” for the assault statutes. See generally Kinnish v. State, 777 P.2d 1179 (Alaska App. 1989).
Alaska law does not prohibit felons from possessing all firearms. Only those firearms that are capable of being concealed on the person are prohibited. This unique definition allows Alaskans who have been previously convicted of a felony to possess long guns (e.g., rifles and shotguns) and not be in violation of Alaska law. While this limits the types of firearms that are prohibited, there is no requirement that the firearm actually be concealed on the person. Mere possession of a concealable firearm or residing in a dwelling knowing that there is a concealable firearm present will sustain a conviction. Given the need for long guns in traditional hunting and trapping activities, the legislature recognized that restricting felons from possessing all firearms would be overly restrictive.
The law punishes selling or transferring a concealable firearm to a felon to the same extent it punishes the felon’s possession. AS 11.61.200(a)(2). If a person sells or transfers a firearm capable of being concealed on the person, knowing that the person receiving the firearm is a felon, the transferor is guilty. In the eyes of the law, the person who knowingly transfers a firearm to a felon is “viewed as equally culpable and deserving of identical punishment as the [felon].” See commentary from Senate Journal Supp. No. 47 at 100-122.
A felon who possesses a firearm capable of being concealed while on school grounds or at a child care facility faces an aggravated charge. AS 11.61.195(a)(2). The law elevates the offense to a class B felony (from a class C felony) in this circumstance. This increased punishment is significant, raising the maximum punishment from up to 5 years in jail to 10 years in jail. AS 11.61.195(b).
The Code provides an affirmative defense if the felon has received a pardon, the conviction has been set aside, or if the conviction did not result from any violation of AS 11.41 (crimes against a person) and ten years has elapsed from the date of the defendant’s unconditional discharge. AS 11.61.200(b). A defendant is unconditionally discharged once the defendant is no longer under the care or custody of the Department of Corrections and the defendant has completed any probationary or parole period. AS 12.55.185. As a result, under state law, certain felons are permitted to possess firearms after ten years from their unconditional discharge.
Loss of their right to “bear arms” (as protected under both the federal and Alaska constitutions) is one of the numerous consequences of a felony conviction. Wilson v. State, 207 P.3d 565 (Alaska App. 2009). The statutory prohibition begins the moment the individual is convicted of a felony. Since the status of being a “felon” is an attendant circumstance to the crime, it is not a valid defense that the person did not know felons are prohibited from possessing firearms. See Afcan v. State, 711 P.2d 1198 (Alaska App. 1986). Ignorance of the law is no defense. However, the defendant must know they are a felon (as opposed to a misdemeanant). See Hutton v. State, 305 P.3d 364 rev’d on other grounds 350 P.3d 793 (Alaska App. 2013). A defendant’s genuine belief that their prior conviction was for a misdemeanor may relieve them of criminal liability. This dispute rarely comes up however, since only felons are placed on felony probation and are required to meet with a felony probation officer.
Federal Felon-In-Possession Law
As you have seen, there are significant differences between Alaska and federal law. Felon-in-possession laws highlights another difference. Under Alaska law, a felon is prohibited from possessing a concealable firearm. AS 11.61.200(a)(1). Under federal law, felons are prohibited from possessing any firearm, regardless of type, including ammunition. 18 USC §922(g)(1). This includes long guns and shotguns (which are not considered prohibited weapons under Alaska law). Incidentally, another key significant difference between Alaska and federal law is that federal law prohibits individuals convicted of misdemeanor domestic violence from possessing firearms. 18 USC §922(g)(9). Alaska does not have a corollary provision.
Intoxicated Individuals
Guns and alcohol do not mix. It is a misdemeanor for a person to possess a firearm while under the influence of an intoxicating liquor or drug. AS 11.61.210(a)(1). But the person must be substantially impaired, not merely intoxicated. The law prohibiting possession of a firearm while under the influence of an intoxicating liquor or controlled substance applies equally to all persons and is akin to the prohibition against driving under the influence. See Simpson v. State, 489 P.3d 1181 (Alaska App. 2021).
Although it is a misdemeanor to possess a gun while intoxicated, it is a felony for a person to sell or transfer a firearm to a person knowing that the person is substantially intoxicated. AS 11.61.200(a)(4). If a person gives a gun to an obviously intoxicated person they are guilty of a more serious offense than the person who actually receives the firearm. Compare AS 11.61.200(a)(4) and AS 11.61.210(a)(1).
Individuals Subjected to Protective Orders
Individuals who are prohibited from contacting another person pursuant to a stalking, sexual assault, or domestic violence protective order face additional limitations surrounding the possession of firearms. First, the law prohibits trespassing into a building or onto land in violation of a domestic violence protective order while in possession of “defensive weapon or a deadly weapon, other than an ordinary pocketknife.” AS 11.61.200(a)(8). A domestic violence protective order (DVPO) is an order from the court finding that the petitioner has been the victim of a domestic violence offense by a household member. AS 18.66.100. The order can contain various provisions, but generally includes a “no contact” provision. AS 18.66.100(c)(2). Second, the law criminalizes any in-person communication in violation of a stalking, sexual assault, or domestic violence protective order while in possession of “a deadly weapon, other than an ordinary pocketknife.” AS 11.61.200(a)(9). Both of these provisions recognize the dangers associated with possession of a deadly weapon while violating a protective order. These provisions criminalize otherwise legal weapon possession.
Recall that federal law, unlike Alaska law, prohibits those convicted of misdemeanor domestic violence assault from possessing a firearm. 18 USC §922(g)(9).
Concealed Weapons
Anyone who is 21 years or older and who is legally permitted to possess a firearm (i.e., not a felon), may carry a weapon concealed. Alaska does not require individuals to obtain a permit before carrying a concealed weapon. Although not required, Alaska law allows a person to obtain a carry-concealed permit through the Alaska Department of Public Safety (DPS) if desired. The Alaska Concealed Handgun Permit (ACHP) program allows individuals to carry concealed in sister states that have entered into reciprocity agreements with DPS. AS 18.65.775. This has not always been the law. Previously, Alaska law required all individuals to obtain a carry-concealed permit, the requirement was repealed in 2003. See Ch. 62, SLA 2003, §§ 1, 7.
Although individuals may carry concealed weapons without a permit, Alaska law requires any person contacted by a police officer to immediately inform the officer of any concealed deadly weapons in their possession. Failure to do so is a class B misdemeanor. AS 11.61.220(a)(1)(A)(i). Recall that deadly weapon is broadly defined and includes not just firearms, but also knives, clubs, and similar items capable of causing death or serious physical injury. AS 11.81.900(b)(17). For example, an ordinary steak knife qualifies as a deadly weapon. See Liddicoat v. State, 268 P.3d 355 (Alaska App. 2011). Anyone possessing a deadly weapon concealed on their person must immediately disclose that information when contacted by law enforcement.
The law is intended to protect law enforcement. See Simpson v. State, 489 P.3d 1181 (Alaska App. 2021). Given the dangers associated with police work, requiring individuals to disclose all concealed weapons reduces the likelihood of its surprise use against the officer. The law placed the burden of disclosure on the citizen, not the officer.
The law only requires the person to immediately disclose firearms “concealed on the person”. AS 11.61.220(a)(1). “Concealed on the person” does not include a firearm concealed under the seat of a vehicle, or otherwise hidden in the vehicle. DeNardo v. State, 819 P.2d 903 (Alaska App. 1991). Thus, a driver who fails to inform an officer that a firearm is concealed in the automobile (i.e., under the driver’s seat or in the center console) is not in violation of the law under AS 11.61.220(a)(1). Simply put, “[a] weapon concealed in an automobile is not ‘concealed on the person.'” See DeNardo, 819 P.2d 907.
Explosives
Explosives present a particular type of danger. When used to commit a crime, they allow a perpetrator to avoid detection by being far away from the explosion at the time of detonation. Explosives can also indiscriminately injure numerous unsuspecting victims with relative ease. See e.g., Machado v. State, 797 P.2d 677, 686 (Alaska App. 1990). The law prohibits two forms of conduct involving explosives: criminal possession and unlawful furnishing. AS 11.61.240 and 11.61.250, respectively. The first prohibits the possession of explosives with the intent to commit a crime, whereas the second prohibits the furnishing of explosives to a person knowing that the person to whom they are furnished intends to use the explosives to commit a crime.
Explosives include most chemical compounds, mixtures, and devices that explode, but also include common components used to make explosives and explosive devices, like dynamite, nitroglycerin, and blasting powder. AS. 11.81.900(b)(24). Certain less dangerous items, including firecrackers and small arms ammunition, are expressly excluded.
Criminal Possession of Explosives
If a person possesses or manufactures an explosive substance or device with intent to use the explosive to commit a crime, the person commits the crime of Criminal Possession of Explosives. AS 11.61.240. For example, if a person possesses dynamite with the intent to blow up their neighbor’s storage shed, the person is guilty of Criminal Possession of Explosive. Because this crime criminalizes the possession of explosives (either actual or constructive), the defendant need not actually use the explosive to be held liable. This is true even if the suspect never actually touches the explosive (assuming that the evidence otherwise is sufficient to establish constructive possession). Nore, however, that the culpable mental state is intentionally – the defendant must specifically intend to use the explosive. Possession without a concomitant culpable mental state is not criminal.
The penalty for Criminal Possession of Explosive is similar to the inchoate offenses of attempt and solicitation: punishment is normally one class lower than the target offense. Thus, possession of explosives with the intent to commit a robbery (a class A felony), would be classified as a class B felony. AS 11.61.240(b). Unlike inchoate offenses, the defendant faces liability (and punishment) for both the target crime and criminal possession of explosives. The crimes do not merge. See Machado, 797 P.2d at 686 (upholding convictions for both attempted murder and criminal possession of an explosive when the defendant used a car bomb in an attempt to kill the victim).
Unlawful Furnishing of Explosives
The crime of Unlawful Furnishing of Explosives criminalizes the furnishing of an explosive substance or device to another knowing that the other person intends to use it to commit a crime. AS 11.61.250. Recall that the culpable mental state of knowing is more nuanced than the term is colloquially used. To prove that the suspect acted knowingly, the government is not required to establish that the suspect “positively knew” that the explosive would be used to commit a crime. Instead, the term is used in its legal sense – that is, whether the suspect was aware of a substantial probability that the explosives would be used to commit a crime. AS 11.81.900(a)(2). Knowingly is a lower culpable mental state than intentionally.
The requirement that the defendant “furnishes” the explosive takes into account the multitude of ways in which an explosive substance or device can be transferred from one person to another. It includes selling, giving, mailing, or any other form of exchange. Remuneration is not required. The transfer is sufficient if it is merely moved from one place to another so long as it ultimately ends up in the hands of the person who intends to use the explosive substance or device to commit a crime.
Finally, there is no requirement that the suspect intends to aid the other person in the commission of the target crime. Even if the supplier of the explosive does not want the crime to be committed, if the supplier was aware that there was a substantial probability that the explosive would be used in a crime, then the supplier is liable. Recognize that if the supplier is charged with the target crime under an accomplice liability (AS 11.16.110), then the government must prove that the supplier intended to promote or facilitate the commission of the crime and act with the underlying culpable mental state of the target crime. See e.g., Riley v. State, 60 P.3d 204 (Alaska App. 2002). As you can see, the crime of unlawful furnishing of explosives is much easier to prove than accomplice liability. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/12%3A_Crimes_Against_Public_and_Social_Order/12.02%3A_Weapon_Offenses.txt |
The unauthorized departure from legal confinement is the crux of escape. We criminalize escape for two primary reasons. First, court-ordered confinement is a command, not a suggestion or a request. Refusal to comply with court sanctions must result in a consequence. Rules matter. Second, the law recognizes that when a person voluntarily flees confinement a host of associated dangers arise. Escapes endanger guards, police officers, and the general public, both during and after their escape. As you will see, Alaska has adopted a tough approach to escape-related crimes.
This section explores the crimes associated with escape, unlawful evasion, and promoting contraband (the introduction of contraband into a jail facility). Escape and unlawful evasion apply to defendants in duly-authorized confinement; those confined by the Alaska Department of Corrections (“DOC”) or some other lawful authority (e.g., police). Some exceptions exist, but bail violations (i.e., pretrial release) are normally excluded from the crimes of escape. Violations of bail may constitute the criminal offense of violating conditions of release or failure to appear depending on the circumstance. Finally, this section explores the differences between escape and resisting arrest.
Bail refers to a defendant’s pretrial release. AS 12.30 et. seq. The Alaska Constitution guarantees all persons accused of a crime the right of pretrial release. Art. 1, §11. The purpose of bail is to ensure the appearance of the accused at subsequent hearings while simultaneously protecting the public from future harm. See e.g., Torgerson v. State, 444 P.3d 235 (Alaska App. 2019). Bail generally is beyond the scope of this text, but the crimes associated with the violation of bail are discussed briefly to help understand the limits of escape.
Escape
Alaska has graded escape based on a series of factors (discussed below), but understanding its statutory scheme requires an understanding of two key terms: official detention and secure correctional facility.
Official Detention
Official detention is the general term for confinement. It includes confinement to a correctional facility and the incidental conduct leading up to confinement in a correctional facility (e.g., arrest, detention, or restraint). Any type of legally authorized confinement or detention is covered, including “custody”, “arrest”, “surrender in lieu of arrest”, or the “constructive restraint under an order of a court”. AS 11.81.900(42).
Custody, as used in the escape statutes, is largely synonymous to arrest. See Beckman v. State, 689 P.2d 500, 502 n.3 (Alaska App. 1984). It occurs when government officers exercise control and restraint over a person. Custody includes post-arrest restraint, including detention before the prisoner is placed in a correctional facility. For example, if an arrestee jumps out of a police car while being transported to the facility, the arrestee would be guilty of escape even though the arrestee never made it to the jail. The arrestee was in custody for purposes of “official detention”.
Like custody, an arrest occurs when an officer exercises physical restraint over a person. Even if the officer is ultimately unsuccessful in apprehending the suspect, if the officer touches an arrestee, an arrest has occurred. See Maynard v. State, 652 P.2d 489, 492 n.6 (Alaska App. 1982). Physical contact with the suspect is the key to an arrest.
[I]f an officer approaches an offender for the purpose of making an arrest, which he is unable to do because the [offender] eludes him by running away, there has been no [escape]…. If an officer having authority to make an arrest actually touches his arrestee, for the manifested purpose of apprehending him, the arrest is complete ‘although he does not succeed in stopping or holding him even for an instant’. In such a case there is legal custody of the arrestee for an instant although the imprisonment is constructive rather than effective. Hence there would be an escape, if such an arrestee ran away after being touched by the officer with appropriate words of arrest and lawful authority for this purpose.
See Maynard, 652 P.2d at 492, n..6
Surrender in lieu of arrest occurs when a suspect capitulates to the officer’s authority, even though no physical restraint occurred.
Finally, a person is under official detention when the person is under “constructive restraint”. Constructive restraint occurs when an officer (1) intends to effectuate an arrest, (2) communicates that intent to the arrestee, and (3) the arrestee understands the command, but nonetheless fails to surrender. Constructive restraint does not require physical custody. Thus, a defendant who absconds from a courtroom after being told they are being remanded is guilty of escape, even if no one physically touches the defendant. See e.g.MacDonald v. State, 83 P.3d 549, 552 (Alaska App. 2004).
Although official detention is broad, it is not without its limitations. A defendant’s correctional status and placement limit what constitutes official detention. Official detention does not include a person released under conditions of bail or a person released on probation or parole. In other words, a person residing at a halfway house as a condition of bail, or while on probation or parole, is not in DOC custody (and thus, not under official detention) for purposes of escape. See e.g., Williams v. State, 301 P.3d 196, 198–99 (Alaska App. 2013). On the other hand, when DOC (as opposed to the court) assigns that person to a halfway house under DOC’s authority to classify and place prisoners, the person remains in DOC custody (and thus, under official detention). See e.g. Wassillie v. State, 366 P.3d 549, 551 (Alaska App. 2016).
A Tale of Two Prisoners…
Hakim Ivie was convicted of second-degree assault and sentenced to two years of imprisonment and two years of probation. Ivie served his initial term of imprisonment and was released on probation. Shortly after his release, Ivie was re-arrested on the allegation that he consumed alcohol in violation of his probation conditions. While his probation revocation case was pending, the court ordered that Ivie be held in jail until space came up at a halfway house (so Ivie could attend alcohol treatment). When space came up, Ivie was transferred to the halfway house as ordered. Shortly after arriving, Ivie walked away. Upon Ivie’s arrest, he was charged and convicted of second-degree escape.
The Court of Appeals reversed Ivie’s escape conviction noting that the trial court ordered DOC to transfer Ivie to the halfway house (for purposes of alcohol treatment). The trial court’s order was a bail release order and not formal confinement to DOC. Placement at a halfway house as a condition of bail is not included within the definition of official detention. See Ivie v. State, 179 P.3d 947, 950-51 (Alaska App. 2008).
Kenneth Lewis was sentenced to a term of imprisonment. DOC placed Lewis at a halfway house in Anchorage based on Lewis’s risk-level. The halfway house authorized inmates to leave the facility for approved reasons (e.g., work release, lawyer meetings, etc.). Lewis received an approved release, and returned as required, but was given a breath test upon his return. The breath test revealed that he had consumed alcohol, which was a violation of the conditions of the halfway house. Staff members told Lewis that he was going to be remanded back to the DOC for violating the facility’s rules. Lewis then walked away from the halfway house. The next day police arrested Lewis. He was ultimately convicted of second-degree escape.
The Court of Appeals upheld Lewis’ escape conviction recognizing that Lewis was still serving his sentence and was in the custody of DOC. DOC made a discretionary decision to place Lewis at the halfway house. This decision did not change Lewis’s legal status – he remained under official detention. See e.g. Lewis v. State, 312 P.3d 856, 857 (Alaska App. 2013).
In the end, a person is not guilty of escape just because he leaves confinement. To be guilty of escape, a court must order DOC to confine the defendant, and the defendant must remove themselves from that confinement. If the order authorizing release is a condition of bail, then the person is not under official dentition for purpose of escape.
Secure Correctional Facility
Secure correctional facility means any premises used for the secure confinement of persons under official detention. It includes facilities that are specifically designed to restrict someone from leaving without permission, like prisons, jails, or holding cells. It also includes facilities where staff have a duty to physically prevent inmates from leaving, like minimum security facilities or “work farms”. Halfway houses, hospital rooms, or treatment facilities, on the other hand, are excluded. See Bridge v. State, 258 P.3d 923 (Alaska App. 2011).
If a prisoner only faces legal restraints on their physical liberty (i.e., a residential treatment center), then they are not confined within a secure correctional facility. On the other hand, if a prisoner’s residence at a facility is forcibly maintained, then they are confined within a secure correctional facility.
Escape
Alaska’s tough approach to escape begins with its four separate degrees of escape, three of which are felonies. The degree of escape is determined based on several factors: (1) whether a firearm or deadly weapon was used or possessed to facilitate the escape, (2) the place from which the escape occurred, and (3) the seriousness of the defendant’s underlying conduct.
Escape in the First Degree (Aggravated Escape)
Escape in the First Degree, a class A felony, is committed when a person removes oneself without lawful authority from official detention by means of a deadly weapon. AS 11.56.300. This would include an armed escape from a secure correctional facility or an armed escape while being transported to jail. The facility escaped from need not be a prison, jail, or holding cell. It includes anyone under official detention. AS 11.56.300(a).
The aggravating circumstance is the deadly weapon. Recall that a deadly weapon includes any firearm (loaded or unloaded) or anything that is designed for and capable of causing death or serious physical injury. Knives, axes, clubs, metal knuckles, and explosives are all considered deadly weapons. AS 11.81.900(b)(17).
The crime requires that the prisoner successfully escapes (at least initially). If a prisoner unsuccessfully attempts to escape using a deadly weapon, the prisoner would be guilty of attempted escape. Recall that attempt requires the defendant to take a substantial step towards the commission of the target crime. AS 11.31.100.
Escape in the Second Degree
Generally speaking, for purposes of escape classification, the legislature has divided those who escape from official detention into two categories: those who escape while under “official detention for a felony” and those who escape while under “official detention for a misdemeanor.” The former is generally more serious than the latter.
Escape in the second degree covers an array of conduct, including escapes from secure facilities, escapes while under “official detention for a felony”, prisoners who possess firearms during their recapture, and confined felons who leave house arrest or tamper with an electronic monitoring device to facilitate their escape. AS 11.56.310. Second-degree escape is a class B felony. AS 11.56.310(c).
First, and arguably the most important, is that all escapes from a secure correctional facility are treated as a second-degree escape. AS 11.56.310(a)(1)(A). Thus, a misdemeanant, as well as a felon, who escapes from a secure correctional facility commits the crime of second-degree escape.
Second-degree escape also covers the person who escapes while under official detention for a felony or an extradition. AS 11.56.310(a)(1)(B).This would encompass the person who jumps out of a police car after being arrested for burglary.
Those who evade confinement – either by removing themselves from official detention or by committing unlawful evasion (discussed below) – and possess a firearm while absconding, are guilty of second-degree escape. AS 11.56.310(a)(1)(C);(a)(2). Thus, a misdemeanant who escapes from official detention and possesses a gun before being rearrested is guilty of second-degree escape, as well as the prisoner who fails to return to jail after being granted a temporary release and possesses a gun during their absence.
Finally, those prisoners who are under official detention for a felony and either (a) remove, tamper, or disable electronic monitoring equipment or (b) leave house-arrest without permission are guilty of second-degree escape. AS 11.56.310(a)(3).
Escape in the Third Degree
Escape in the Third Degree is a low-level felony offense and largely deals with misdemeanants who leave official detention by specific means. For example, a person who escapes during any lawful movement incident to confinement while under official detention for a misdemeanor is guilty of third-degree escape. AS 11.56.320(a)(1). This covers the misdemeanant who escapes from a DOC van during transport to the courthouse. It would also cover the incarcerated misdemeanant who escapes during a supervised visit to the dentist’s office after being transported there to have a tooth pulled.
Third-degree escape also includes leaving a residence or other place where the person is in custody for a misdemeanor; tampering or disabling an electronic monitoring device while under official detention for a misdemeanor; and tampering with or disabling an electronic monitoring device that has been ordered as a condition of bail release. AS 11.56.320(a)(3), (a)(4). This last provision – tampering with an electronic monitoring device while on bail – is the only provision within the escape statutes that address pretrial release.
Escape in the Fourth Degree
Escape in the Fourth Degree is a class A misdemeanor and encompasses the least serious conduct associated with escapes. Fourth-degree escape largely covers the residual conduct associated with misdemeanants not addressed in the third-degree escape statute. Specifically, the statute criminalizes misdemeanants who leave official detention. AS 11.56.330(a)(1). This would cover the defendant who flees a halfway house while being confined on a misdemeanor or the person who jumps out of a police car after being arrested for disorderly conduct. The statute also covers escapes occurring during pre-arrest investigative stops (temporary stops based on reasonable suspicion). If a person flees before the police take them into custody, the person is guilty of fourth-degree (misdemeanor) escape. AS 11.56.330(a)(2).
Unlawful Evasion
The criminal code includes a lesser offense of unlawful evasion. Unlawful Evasion occurs when a person fails to return to official detention after being granted temporary leave for a specific or limited purpose, such as a work furlough. AS 11.56.335-340. If the person fails to return to official detention while being confined for a felony, the person is guilty of unlawful evasion in the first degree (essentially aggravated unlawful evasion). If the person fails to return to official detention while being confined for a misdemeanor, the person is guilty of unlawful evasion in the second degree.
The crux of unlawful evasion is that the prisoner fails to return to the facility after being given authority to temporarily leave the premises. Walking away from a facility while under official detention is an escape. Failing to return to a facility after being permitted to temporarily leave is unlawful evasion. See e.g., Barrett v. State, 772 P.2d 559 (Alaska App. 1989).
Permitting An Escape
The Code includes a rarely charged offense called permitting an escape. AS 11.56.370. Permitting an Escape occurs when a public servant in charge of prisoners negligently permits a prisoner to evade official detention. The public servant must act with criminal negligence – the disregard of a substantial and unjustifiable risk that the person would escape. This could occur if a jail guard absentmindedly left a prison door unlocked after being told to double-check the door. Permitting an escape is a class C felony. AS 11.56.370(b).
Promoting Contraband
Promoting contraband is the voluntary introduction of contraband into a correctional facility. Promoting contraband is divided into two degrees, and the penalty depends on the type of contraband that is involved.
Contraband is any article or thing that a person confined to a correctional facility is prohibited by law from possessing. The Department of Corrections is responsible for promulgating regulations that define contraband, but generally, it includes money, nicotine, alcohol, and drugs.
If the contraband is a deadly or defensive weapon (i.e., shank), an article that is intended to be used as a means of facilitating an escape (i.e., a passkey), or a controlled substance (i.e., drugs), the crime is evaluated to Promoting Contraband in the First Degree, a class C felony. AS 11.56.375. If the prohibited item is anything else, the crime is Promoting Contraband in the Second Degree, a class A misdemeanor. AS 11.56.380.
Promoting contraband applies to both incarcerated and non-incarcerated persons. The person who brings contraband into the facility is just as guilty as the person who makes, obtains, or possesses contraband inside the facility. Thus, both the inmate who receives contraband from a visitor and the visitor are guilty of promoting contraband. See e.g.,Hillman v. State, 382 P.3d 1198 (Alaska App. 2016).
Finally, recall that all criminal acts must be performed voluntarily for criminal liability to attach. Involuntary acts are not criminal. It is an unresolved question in Alaska whether a defendant is guilty of promoting contraband if the defendant knowingly, but involuntarily, introduces contraband into the correctional facility when the contraband is hidden on their person at the time of their arrest and they are transported to the facility against their will. Compare Idaho v. Gneiting, 468 P.3d 263 (Idaho 2020) (holding that a person who knowingly takes drugs into a detention facility that are hidden inside a body cavity does so voluntarily, even though they entered the facility involuntarily) and Oregon v. Tippetts, 43 P.3d 455 (Or. 2002) (holding that a defendant did not voluntarily introduce marijuana into county jail since the defendant was brought to jail involuntarily pursuant to an arrest).
Violation of Conditions of Bail Release
A person commits the crime of violating conditions of release when that person has been charged with a crime, released on bail, and violates a court-imposed bail condition. AS 11.56.747. Conditions of bail are not typically stand-alone criminal offenses, but instead conditions designed to ensure that the defendant appears at future court hearings and protect the public. Conditions of bail can frequently cover a large array of conduct, including not possessing alcohol, not having contact with a particular person (e.g., the victim), or staying away from a particular location (e.g., the scene of the crime). AS 12.30 et. seq.
Violating conditions of release is a class A misdemeanor if the defendant’s underlying charge is a felony and a class B misdemeanor if the defendant’s underlying charge is a misdemeanor. AS 11.56.757(b).
Failure to Appear
A person commits the crime of failure to appear if the person knowingly fails to appear for a hearing in a criminal prosecution. AS 11.56.730. This occurs when a defendant is released on bail and fails to appear before the court at a subsequent court hearing. Failure to appear is a new crime, independent of the underlying charge.
The law provides an affirmative defense if due to unforeseen circumstances outside of the person’s control the person fails to appear. AS 11.56.730. For example, if a defendant is involved in a car accident on the way to the court hearing, the defendant could raise the affirmative defense and argue that they should not be held criminally liable for the new crime of failure to appear.
Like violating conditions of release, failure to appear is a class A misdemeanor if the defendant’s underlying charge is a felony and a class B misdemeanor if the defendant’s underlying charge is a misdemeanor. AS 11.56.730(d).
Resisting Arrest
Resisting arrest prohibits an individual from using force to prevent an arrest. AS 11.56.700. The crime is a specific intent crime – to be guilty of resisting arrest, a person must intend to prevent the officer from making an arrest through the use of force. If the defendant uses force at any point during the process of taking a suspect into custody, the defendant has committed the crime of resisting arrest. See Fallon v. State, 221 P.3d 1016, 1020 (Alaska App. 2010).
The crime of resisting arrest requires the use of force. Recall that force means “any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint or confinement.” AS 11.81.900(28). Mere non-submission (passive resistance) during an arrest is not force. See e.g. Howard v. State, 101 P.3d 1054 (Alaska App. 2004). For example, “turtling” and yelling are not acts of resisting arrest; there is insufficient force. Conversely, actions directed at the arresting officer (i.e., pushing away from the arresting officer or repeatedly trying to get up from the ground during a struggle) are acts of resisting arrest. See e.g., Bultron v. State, 2011WL 5627897 (Alaska App. 2011).
A Tale of Two Arrestees…
One evening in Soldotna, two troopers went to the house of Warren Eide to arrest him for vehicle theft. Troopers found Eide on the floor in a sleeping bag. Troopers told Eide several times that he was under arrest. One trooper grabbed Eide by the wrist to pull him up, but Eide jerked away, and told the trooper, “No, leave me alone, I ain’t going.” Eide rolled onto his stomach with his arms underneath him. Troopers told Eide several times to “stop resisting arrest.”
The troopers were concerned that they or Eide would get hurt if they had to wrestle Eide into submission. Accordingly, the trooper deployed an electric shocking device (Taser) on Eide to gain his cooperation. The electric shocking device caused immediate pain to Edie. Eide immediately jumped up and submitted to his arrest.
Eide was convicted of resisting arrest (in addition to the original charge of vehicle theft). The Court of Appeals reversed Eide’s resisting arrest conviction, noting that Eide’s conduct of “turning ‘turtle’ and announcing that he was not going with the trooper does not rise above ‘mere non-submission’” because Eide’s conduct did not actively create a danger of physical injury. See Eide v. State, 168 P.3d 499 (Alaska App. 2007).
On a different evening in Soldotna, a trooper was patrolling the Sterling Highway when he spotted a vehicle in the ditch. During the trooper’s investigation, the trooper determined that the driver, Chris Fallon, was intoxicated. The trooper placed Fallon under arrest for driving under the influence.
When the trooper was arresting Fallon, he directed Fallon to put his arms behind his back. Fallon initially complied, but then tensed his arms and pressed them against his back so the trooper could only handcuff one arm. The trooper told Fallon several times to relax and stop resisting, but Fallon became verbally belligerent and continued to tense his arms. The trooper was concerned that Fallon might assault him, so he pepper sprayed Fallon. It had no effect. Fallon began pushing himself away from the patrol car, so the trooper took Fallon to the ground. During the struggle, the trooper could still not handcuff Fallon because Fallon kept trying to get up and continued to tense his arms. It was not until a passing motorist stopped to assist that the trooper was able to handcuff Fallon and secure him in the patrol car.
Fallon was convicted of resisting arrest (in addition to DUI). The Court of Appeals upheld the resisting arrest conviction, noting that Fallon’s conduct went beyond mere non-submission, and instead, was force directed at the trooper. See Fallon v. State, 221 P.3d 1016, 2021 (Alaska App. 2010).
12.04: End-of-Chapter Material
Summary
Public order crimes generally prohibit offensive, disruptive, or otherwise undesirable behavior. The government is interested in protecting its citizens’ quality of life, and therefore prohibits several crimes that harm the general public (and not a particular person). Public order crimes are sometimes referred to as “victimless crimes”.
Disorderly Conduct criminalizes making a loud and unreasonable noise, fighting or challenging another person to fight, or creating a hazardous condition in public, with the specific intent or purposely or reckless intent to cause public inconvenience and alarm or a risk thereof. Disorderly conduct statutes frequently target speech, so they are subject to constitutional challenges under the First and Fourteenth Amendments. Disorderly Conduct is a Class B misdemeanor, the lowest possible crime.
Disruptive group conduct tends to enhance the potential for force and violence. Riot criminalizes collective, group acts of violence if done with the intent to engage in tumultuous and violent behavior. Riot requires the group to consist of five or more people. It is a class C felony. Like Disorderly Conduct, Riot is narrowly interpreted to ensure that it does not violate a person’s First Amendments rights of free speech and free assembly.
Harassment criminalizes relatively trivial conduct that interferes with a person’s personal autonomy. Harassment punishes actions like spitting, taunting, prank phone calls, and cyberbullying, among others.
Weapon offenses criminalize the use or possession of prohibited weapons. Weapon offenses are not “victim crimes”, although the offenses can frequently involve a victim. Weapon offenses do not penalize the resulting harm, injury, or damage, but instead, penalize the danger created by the weapon. Weapon offenses cover a wide array of conduct from drive-by shootings to possession of concealed weapons. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/12%3A_Crimes_Against_Public_and_Social_Order/12.03%3A_Escape_and_Related_Offenses.txt |
The Alaska code includes several crimes that are often viewed as victimless and harmless (other than the harm done to the defendant or society in general). Specifically, Alaska has criminalized conduct surrounding drugs, alcohol, prostitution, and gambling. Drug offenses criminalize the manufacture, delivery, sale, and possession of various drugs. Alcohol offenses criminalize conduct involving the sale, possession, and delivery of alcohol. Alaska regulates alcohol to a greater extent than most states. Prostitution, pimping, and pandering (now referred to as sex trafficking) criminalize “consensual” sexual activities. Finally, the code criminalizes specific types of gambling. Each of these crimes violates society’s collective morality.
Drug Policy
The American criminal justice system has long punished the use of intoxicating substances deemed harmful to the human body. From Prohibition in the 1920s to the War on Drugs beginning in the 1960s, the criminal justice system has been at the forefront of society’s response to the negative consequences of the use of illicit drugs and alcohol. Nearly every community has been impacted. Alaska has been no exception.
A complete discussion of the efforts to combat illicit drug trafficking is beyond the scope of this textbook. Broadly speaking however Alaska’s statutory scheme seeks to reduce the availability of drugs through various enforcement and interdiction methods, including the prosecution of both drug traffickers and drug users. While policymakers may face criticism for criminalizing drug use, Alaska is not unique in its efforts. But Alaska does treat traffickers differently than users.
Alaska grades drug offenses based on the type of drug involved and the conduct the defendant engaged in. For example, a person who sells heroin to a minor is guilty of an unclassified felony, whereas a person who simply possesses cocaine for personal use is guilty of a misdemeanor. Compare AS 11.71.010 and 11.71.050. Alaska’s statutory scheme relies on the interplay between these two components.
Drug Schedules
Controlled substances (drugs) are divided into categories, called schedules, based on how dangerous the drug is. The schedules contain both illicit drugs (e.g., “street drugs”) and non-illicit drugs (e.g., prescription drugs). All controlled substances are classified into one of six schedules, which are labeled schedules IA through VIA. AS 11.71.140 – AS 11.71.190. The scheduling of substances is patterned after the federal drug schedules, which classifies substances into five schedules, labeled I through V. See 21 U.S.C. §812. Alaska has adopted the letter “A” after its numbered schedules to clearly distinguish between state and federal schedules.
Although both the federal government and Alaska classify substances based on similar criteria: a substance’s potential for abuse, its biomedical hazard, its likelihood of dependence, and its relationship to criminal activity – the jurisdictions weigh the factors very differently. As a result, the schedules are not identical and contain some significant differences. For example, under federal law, schedule I include drugs that have “no currently accepted medical use”. 21 U.S.C. §812(b)(1)(B). Alaska has specifically omitted this criterion.
In Alaska, the more dangerous a drug is, regardless of medical use, the higher it is placed on the drug schedules. For example, fentanyl is a powerful painkiller, and doctors frequently prescribed it during childbirth and for end-of-life pain management. Fentanyl is a synthetic opiate and can be lethal if taken in excess. It is also highly addictive. Alaska classifies it as a schedule IA controlled substance along with all opiates and opiate derivatives. AS 11.71.140(c)(29). Methamphetamine, on the other hand, currently has no medical use, and is seen almost exclusively in illegal drug trafficking. Although methamphetamine is dangerous, it does not have the same potential for abuse as opiates. It is classified as a schedule IIA controlled substance. AS 11.71.150(e)(2). Understanding the relevant drug schedules is very important, as it directly ties to the seriousness of the criminal behavior.
One very significant difference between the federal and state schedules is marijuana. The federal government classifies marijuana as a Schedule I controlled substance (the highest and most dangerous level of drug) because of its lack of medical use. Federal law criminalizes the possession of any amount of marijuana. 21 USC § 844. Alaska, on the other hand, classifies marijuana as a Schedule VIA controlled substance (the lowest level) because state lawmakers have found it to be the least dangerous drug. Alaska permits a person 21 years or older to lawfully purchase and possess marijuana. AS 17.38.020.
Trafficking versus Possession
A drug’s placement on the drug schedules is just one component of understanding Alaska’s drug statutory scheme. The second component involves the defendant’s conduct. Broadly speaking, the law criminalizes two types of conduct associated with controlled substances: drug possession and drug trafficking. Possessory offenses are generally graded lower; trafficking offenses are generally graded higher.
Possessoryoffenses, as the name implies, criminalize the possession of a controlled substance for personal use. Recall that possession can take several forms, including both actual and constructive possession. Actual possession occurs when a controlled substance is found in an individual’s physical or immediate presence. Constructive possession occurs when an individual is not in physical possession of an item but has the authority (legal or otherwise) to control an item. See Alex v. State, 127 P.3d 847 (Alaska App. 2006).
Is Evidence of Drug Use Evidence Drug Possession?
In 1989, police executed a search warrant at a suspected crack house. Police found Earl Thronsen lying face down on a couch in the living room. His hands were concealed beneath him. When officers placed Thronsen in handcuffs, officers found a syringe underneath his arms. The syringe was consistent with intravenous drug use, as were Thronsen’s track marks on his arms.
Pursuant to a search warrant, police obtained samples of Thronsen’s blood and urine. The urine tested positive for the presence of cocaine and cocaine metabolites. The Grand Jury indicted Thornsen for possession of cocaine “in his body.” Thronsen challenged the indictment, arguing that the presence of a controlled substance in a person’s body is insufficient evidence to prove the person possessed the drug.
Can a person be convicted of drug possession based on evidence that the person had previously ingested drugs? Why or why not? Check your answer at the end of the chapter.
Although exceptions exist, normally first-time offenders found in possession of controlled substances (other than marijuana) are guilty of a misdemeanor. AS 11.71.050(a)(4). Colloquially this is referred to as simple possession. By classifying first-time possession as a misdemeanor, the legislature has emphasized rehabilitation and treatment over other penological goals. At least theoretically, the criminal justice system treats users as individuals with a disease in need of intervention. The legislature has sought to avoid the collateral impacts normally associated with a felony conviction. First-time defendants convicted of simple possession are not hardened criminals in the eyes of the criminal code.
As one can imagine, these sentencing goals change with repeat offenders. A second-time offender is no longer guilty of a misdemeanor. If the defendant has been previously convicted of simple possession in the previous 10 years, the crime is elevated to a felony. AS 11.71.040(a)(12).
Drug trafficking is a much more serious offense. The code criminalizes three separate voluntary acts associated with trafficking: the manufacture of a controlled substance, the delivery of a controlled substance, and possession of a controlled substance with the intent to distribute. Each action is a component of a successful drug trafficking operation and the legislature seeks to punish each one. A typical drug trafficking statute, like AS 11.71.021(a)(1), includes all three.
Figure 13.1 – Alaska Criminal Code – AS 11.71.021(a)(1)
Notice that the subsection does not require the defendant to manufacture, deliver, or possess a certain amount of the controlled substance. Any amount is sufficient to impose criminal liability. Quantity is not an attendant circumstance in this subsection. The statute criminalizes the action, independent of the amount trafficked. You will see momentarily, the quantity trafficked is a sentencing issue, not a liability issue.
Manufacturing a controlled substance includes producing, preparing, converting, growing, or processing a controlled substance. AS 11.71.900(13). Simply put, any change to a drug or its precursors will likely be sufficient to demonstrate manufacturing. Thus, converting cocaine hydrochloride (powder cocaine) into crack cocaine (by neutralizing the hydrochloride so it is no longer water-soluble) constitutes “manufacturing.” See Chamber v. State, 881 P.2d 318, 321 (Alaska App. 1991). This is true even though the basic cocaine molecule does not change during the process.
Delivery means the actual or constructive transfer of the controlled substance to another person. AS 11.71.900(13). The law does not require remuneration or an established agency relationship (i.e., dealer/user). A defendant is guilty of trafficking even if the defendant gives a controlled substance to another person for benevolent reasons. For example, if a person shares their prescription oxycodone (a powerful painkiller and schedule IA narcotic) with an injured friend during a camping trip, the person is guilty of drug trafficking under AS 11.71.021(a)(1). To avoid criminal liability, the person could assert the affirmative defense of necessity, but the person would have to demonstrate that there was no reasonable alternative. AS 11.80.320. In short, the law is not limited to drug dealers; any transfer of a controlled substance without a prescription is criminalized. Conversely, a drug purchaser (i.e., a user) may not be prosecuted or convicted of trafficking as an accomplice to the delivery. See e.g., Howard v. State, 496 P.2d 657, 660 (Alaska 1972). In other words, drug users are not facilitating the delivery of drugs when they purchase the drugs.
Possession with the intent to deliver or manufacture is the most common theory of drug trafficking prosecutions. The theory does not require evidence of actual manufacturing or actual delivery, but instead, focuses on the defendant’s intent. If the defendant possessed a controlled substance with the intent to subsequently deliver it, the defendant is guilty of drug trafficking. The line between drug trafficking and simple drug possession is not always clear, however; in fact, it is often blurry. The jury considers the totality of the circumstances in determining whether the defendant possessed the drugs with the intent to deliver, including the quantity, value, and associated drug paraphernalia. Although no one fact is determinative, possession of a large quantity of drugs, especially when the amount is larger than typically used for personal use, frequently demonstrates that the defendant is a dealer and not a user. See e.g., Stacy v. State, 500 P.2d 1023 (Alaska App. 2021). The government frequently relies on expert testimony to explain to the jury what constitutes indicia of drug distribution as opposed to personal use. Such experts are typically drug investigators, which may be qualified as hybrid experts in court. See id.
Alaska law distinguishes between low- and high-level traffickers through the application of aggravating and mitigating factors. An aggravating factor applies when a large quantity of a controlled substance is involved, and a mitigating factor applies when a small quantity of a controlled substance is involved. AS 12.55.155(c)(23)-(c)(26); 12.55.155(d)(13)-(d)(15). These factors allow the court to depart upwards or downwards from the felony presumptive-range sentence that would be imposed absent an aggravating or mitigating factor. Whether a quantity is determined to be large or small is fact driven and looks at several variables:
Within any class of controlled substance, what constitutes an unusually small or large quantity may vary from case to case, depending on variables such as the precise nature of the substance and the form in which it is possessed, the relative purity of the substance, its commercial value at the time of the offense, and the relative availability or scarcity of the substance in the community where the crime is committed. Variations may also occur over time: what amounted to a typical controlled substance transaction ten years ago might be an exceptional one today. These variables do not lend themselves to an inflexible rule of general application, and they render it both undesirable and wholly impractical to treat the question of what constitutes a “large” or “small” quantity . . . as an abstract question of law. The question must instead be resolved by the sentencing court as a factual matter, based on the totality of the evidence in the case and on the court’s discretion, as informed by the totality of its experience.
See Knight v. State, 855 P.2d 1347, 1349-50 (Alaska App. 1993).
Marijuana
Marijuana is largely legal under Alaska law and regulated similar to alcohol. Following a 2015 ballot initiative, Alaska legalized the manufacture, distribution, and sale of marijuana by licensed marijuana establishments. The marijuana industry is heavily regulated by the state’s Marijuana Control Board. The state’s criminal statutes surrounding marijuana largely target the marijuana “gray market” – that is, the unlawful cultivation, distribution, and possession of unregulated marijuana.
The legalization of marijuana presents interesting constitutional dilemmas given that federal law continues to list marijuana as a Schedule I drug and does not permit its possession, use, or sale for any person. Thus, Alaska’s laws surrounding the recreational and medical use of marijuana potentially violate the Supremacy Clause in the federal constitution. That said, the US Supreme Court has not invalidated any state’s marijuana statutory scheme on this basis. The Court has upheld Congress’s authority to prohibit the possession and use of small quantities of marijuana under the Federal Controlled Substances Act however, and has rejected a medical necessity exception for the possession and use of marijuana. See Gonzales v. Raich, 545 U.S. 1 (2005); United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001).
Alcohol
The debate surrounding the dangerousness of alcohol – and the government’s role in a solution – has mutated over the past century. For example, in 1919, and for largely puritan reasons, an overwhelming majority of states ratified the 18th Amendment prohibiting alcohol in the United States. Over the next 14 years, both federal and state law enforcement officers dedicated significant time and resources to its enforcement. Fourteen years later, prohibition was repealed through the passage of the 21st Amendment. While a more laissez-faire scheme took hold surrounding the possession of alcohol, the government remained intimately involved in alcohol’s manufacture and distribution.
Alcohol remains a heavily regulated activity. At the federal level, both the Food and Drug Administration (FDA) and the Bureau of Alcohol, Tobacco, and Firearms (ATF) regulate interstate and foreign commerce of alcohol. At the state level, the Alaska Alcohol Beverage Control Board (ABC) regulates the manufacture, sale, and possession of alcohol within the state. State law defines the legal drinking age, licensing requirements, and possession limitations. See e.g. AS 04. et.seq. For example, it is illegal to sell, give, or barter an alcoholic beverage to an intoxicated person. AS 04.16.030(a)(1). Likewise, it is illegal for a person to remain in a bar if they are intoxicated. AS 04.16.040. Although the ABC Board regulates the industry, violation of state law results in criminal liability.
Unique to Alaska, Alaska law allows local municipalities to enact local option laws that prohibit the sale, importation, or even possession of alcohol within a community. AS 04.11.499. Violation of a community’s local option law is significant – it is a felony to import alcohol into a municipality if the community has prohibited such conduct. AS 04.16.200(b).
What’s in a name…
Colloquially, a municipality that has passed an ordinance to ban the importation, sale, or possession of alcoholic beverages is called dry; a community that allows limited amounts of alcohol, or under specific circumstances, such as for personal use, is called damp. Finally, a community with limited or typical alcohol regulations – like Anchorage – is referred to as wet.
Public Intoxication
Recall that it is unconstitutional to punish a person for being addicted to drugs or alcohol. Robinson v. California, 370 U.S 660 (1962). A person’s addiction relates to their status in the community. Status is not a criminal act.
While the government may not criminally punish a person for their addiction, police frequently place individuals who are severely intoxicated into protective custody. Such police actions are not part of an officer’s criminal enforcement function, but instead part of an officer’s community caretaker function. Society has determined that severely intoxicated individuals need supervision, and in some circumstances, medical intervention.
When an officer encounters a person who is intoxicated – that is, substantially impaired as the result of alcohol or drugs – the law permits the officer to take the person into custody until the person is sober. AS 47.37.170(a). However, if a person is so intoxicated that they are incapacitated – that is, incapable of making rational decisions as a result of alcohol or drugs – police must take the person into protective custody. AS 47.37.270(7). Police have a mandatory duty to take incapacitated persons into protective custody. AS 47.37.170(b).
Example of Protective Custody
Sam recently received fantastic news. He received an “A” on his Criminology final exam. In an effort to celebrate, Sam and a couple of his friends decide to go out after school for drinks and merriment. After a long night of drinking, Sam stumbles out of the bar and begins walking home. Sam doesn’t make it far. About three blocks from the bar, Sam finds a park bench and lays down. Sam quickly passes out on the park bench. Sam’s friends are nowhere to be found. Sam is alone. About 20 minutes later, an officer happens upon Sam passed out on the bench. The officer rouses Sam and begins asking him questions. Sam is incoherent. He is unable to answer the officer’s questions and unable to tell the officer where he lives and how he plans to get home. If the officer determines that Sam is intoxicated, the officer may take Sam into protective custody and transport him to a detention facility (jail) until Sam is sober. On the other hand, if the officer determines that Sam is incapacitated, the officer is required to take Sam into protective custody. The officer does not have the discretion to let Sam stay on the park bench. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/13%3A_Crimes_Against_Morality/13.01%3A_Drugs_and_Alcohol.txt |
The Alaska Code’s gambling provisions are intended to heavily penalize gambling businesses, focus on organized crime, and exclude the person who engages in social gambling.
Gambling is broadly defined. It covers almost every activity having an element of chance. Specifically, gambling means a person who risks something of value upon the outcome of a contest of chance or a future contingent event not under their control or influence, with an understanding that they or someone else will receive something of value in the event of a particular outcome. AS 11.66.280(2). As described by the legislature commentary, “[t]he definition includes any activity that brings a profit based on chance and includes ordinary lotteries. Games of pure skill, e.g. chess, will not be considered gambling if the contestants bet against each other. Placing a side bet on a game of chess, however, would be gambling because, from the onlooker’s perspective, the outcome depends on ‘chance’ as he has no control over the outcome.” See Senate Journal Supp. No. 47, at 117-18 (June 12, 1978). Legitimate business speculations, such as the stock market, are exempted, as are tickets redeemable for prizes (e.g., Chuck-e-Cheese tickets) and claw machines. State-regulated charitable gaming (e.g., Bingo, raffles, Ice Pools, etc.) is also exempted. AS 11.66.280(12). Charitable gaming is a complex array of statutes and regulations and is beyond the scope of this textbook. See generally AS 05.15 et. seq.
The gambling patron, or bettor, whose only financial interest is in their own winnings, commits the crime of gambling. AS 11.66.200. Gambling is a violation with a maximum fine of \$1000. However, the Code contains an affirmative defense for social games. AS 11.66.200(b). If a defendant is a player (defined as someone who competes on equal terms with all other participants, and plays in a social game), the player is not guilty of gambling. A social game is defined as one played in a home where there are no “house” advantages, house odds, or house income. Note that “player” includes someone who helps organize a social game so long as they are not paid for their services.
Although home is not specifically defined in the Code, the legislative history indicates that the social game affirmative defense only applies to structures similar to dwellings – structures adapted for and used for overnight accommodation. It includes houses, hotel rooms, motor homes, and tents. It would not include clubs or bars.
Promoting gambling is felony gambling and is focused on organized gambling enterprises. AS 11.66.210. Gambling enterprises must be relatively large gambling businesses. To be an “enterprise” the gambling business must include at least five persons in its ownership or operation, and must either operate on a substantially continuous basis for more than 30 days or take in at least \$2,000 in wagers during a single day. AS 11.66.280(5). Certain charitable and fraternal organizations are excluded from the definition. This was included to ensure fraternal organizations, such as the Elks Club or the Moose Lodge, could not be charged with a felony if gambling occurs on their premises. If the gambling business is too small to be an “enterprise”, the crime is promoting gambling in the second degree, a misdemeanor. AS 11.66.240. Charitable and fraternal organizations are not excluded from this statute, and may may be charged with misdemeanor gambling if warranted. AS 11.66.240.
Anyone who, for profit, assists a gambling enterprise in any material way (with the exception of merely betting), may be prosecuted for felony promoting gambling. This would include bartenders, waitresses, and bookkeepers employed by the house, as well as persons who financed or managed the operation. AS 11.66.280(9).
The code also criminalizes the possession of gambling records. AS 11.66.230-.240. Gambling records include any paper or writing of the type “commonly used” in unlawful gambling, whether or not it is actually used in a particular game. AS. 11.66.280(6). It is an affirmative defense that the defendant did not intend to use the record to operate or promote unlawful gambling or only possessed the records in a social game. AS 11.66.250. A player is relieved of criminal liability through an affirmative defense if the player possesses a record of their own bets in the gambling enterprise.
Possession of a gambling device is also illegal. Gambling devices are defined to include almost everything usable in the game itself. Anyone who possesses or uses a gambling device knowing what it is and that is being used in unlawful gambling is guilty of possession of a gambling device, a misdemeanor. AS 11.66.260. The defendant is relieved of criminal liability if the device was used in a social game. AS 11.66.260(b). This protects those who manufacture or sell ordinary playing cards, those who keep cards and chips at home for friendly poker grams, or have an antique slot machine in their basement.
One powerful aspect of the gambling statutes is forfeiture. The code specifically permits money, gambling devices, and gambling records to be forfeited to the government. AS 11.66.270. Money, however, is only subject to forfeiture if it was used as a bet or stake. Thus, if an underground poker house is broken up, money in the players’ pockets is not subject to forfeiture. The money in the promoter’s pocket, however, is subject to forfeiture. The law allows money seized from the promoter of a gambling enterprise (the person who “conducts, finances, manages, supervises, directs, or owns the gambling enterprise) to be forfeited to the government. AS 11.66.270(3). | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/13%3A_Crimes_Against_Morality/13.02%3A_Gambling.txt |
The oldest profession. The debate over whether prostitution should be legal or criminal has raged on for centuries. Some argue that it amounts to government interference with one’s own body and is based on a puritan view of sexuality. Advocates of legalized prostitution argue that when such conduct is criminal, sex workers are forced to work in the shadows, increasing the likelihood of physical and sexual violence, by pimps and patrons alike. Instead of criminalizing consensual sex work, the government should regulate the profession like alcohol or marijuana.
Others argue that the overwhelming majority of those who engage in prostitution are not engaging in such behavior consensually. Prostitution is inherently exploitive, demeaning, and contributes to the modern slave trade. Advocates of criminalizing prostitution recognize that it is simply the product of sex trafficking, which when perpetrated, violates basic human rights and deprives victims of every shred of personal freedom.
Alaska has taken the latter view. Alaska law recognizes that both sex and human trafficking are forms of modern day slavery and should be punished as such. Prostitution, although illegal, is not the target of significant punishment. Prostitution is a class B misdemeanor, the lowest level crime available, and the law provides prostitutes with immunity from prosecution if the prostitute reports a violent crime (including sex trafficking) to law enforcement. AS 11.66.100(c).
Although some enter the prostitution profession voluntarily, Alaska law generally views those who engage in prostitution, especially children, as being trafficked, and as victims of a serious crime. See H.B. 359, 2012 Leg., 27th Sess. (Alaska 2012) (Governor’s letter of transmittal seeking passage of HB 359).
Prostitution
In the United States, all states prohibit prostitution except for Nevada. In Nevada, legal prostitution must follow specific guidelines and can occur only in a licensed house of prostitution (N.R.S. 201.354, 2011). Of course, Nevada is the exception, not the rule.
In Alaska, a person commits the crime of prostitution if they engage in, agree to, offer to engage in, or offer a fee for sexual conduct. AS 11.66.100(a). The gravamen of the offense is the offer or agreement to exchange sex for a fee. The actual payment of the fee is not required. See Garibay v. State, 658 P.2d 1350 (Alaska App. 1983).The act is complete when an offer is extended or an agreement is made. Although the fee is typically money, it can be anything that has value. Cash consideration is not required. See commentary, Senate Journal Supp. No. 47, at 109. (June 12, 1978); Muse v. United States, 522 A.2d 888, 891 (D.C. App. 1987).
Sexual conduct includes all forms of sexual intercourse, as well as cunnilingus, fellatio, and masturbation of one person by another. AS 11.66.150(3). The law is gender-neutral. Although prostitution laws historically criminalized only women who engage in prostitution, and not men, such laws violate equal protection and are unconstitutional. See Plas v. State, 598 P.2d 966 (Alaska 1979).
The crime itself is relatively minor. As noted, the crime is a class B misdemeanor. Provided that the prostitute is an adult, the statute punishes both the prostitute and the patron the same – up to 90 days in jail. AS 12.55.135(b). If the prostitute is a minor (under 18 years old), and the patron is at least 21 years old, the patron is guilty of a class C felony offense. AS 11.66.100(e). The law provides for an affirmative defense if the patron took reasonable steps to verify the prostitute was over the age of 18. AS 11.66.100(b). Note that this affirmative defense is similar to the affirmative defense available to a defendant charged with sexual abuse of a minor. AS 11.41.445(b).
Sex Trafficking
Although Alaska criminalizes both the act of selling sex and buying sex, the real focus is on commercial sexual activity. Modern criminal statutes recognize that many prostitutes are victims of sex trafficking and not eager, willing participants. Pretty Woman® is a Hollywood story, not real life. Alaska’s statutory scheme is designed to interrupt the commercial sex trade with a particular focus on persons who exploit children by inducing them to engage in prostitution. Alaska grades sex trafficking into four degrees, ranging from an unclassified felony for first-degree sex trafficking to a class A misdemeanor for fourth-degree sex trafficking.
The More You Know …
Research surrounding sex trafficking shows that traffickers prey on the most vulnerable in our society – young girls and boys who have experienced physical and sexual abuse, drug abuse, or homelessness. The National Center for Missing and Exploited Children (NCMEC) is a national nonprofit clearinghouse and reporting center that works with law enforcement to investigate childhood abduction, abuse, and exploitation. Identifying the causes of child sex trafficking is a large component of its mission.
Most experts believe that girls are first exploited between the ages of 12 to 14 and boys between 11 and 13. Alaska officials believe the age is slighter higher in Alaska, with girls generally first being exploited between 15 and 17 years old. See The State of Alaska Task Force on the Crimes of Human Trafficking, Promoting Prostitution and Sex Trafficking, Final Report and Recommendations (February 15, 2013). Regardless of the precise age that victims are first exploited, children are frequently the target of traffickers. But sex trafficking is not limited to child-victims. Adults are also the victims of sex trafficking. For more information about human and sex trafficking visit the Polaris Project, a non-profit organization dedicated to assisting victims of human and sex trafficking.
Sex Trafficking in Alaska
Those who force others into the sex trade are guilty of a class A felony. Historically, this was referred to as pandering – the procuring or forcing another person to engage in prostitution. The panderer, the person who uses manipulation, violence, or threats to force another person to engage in prostitution against their will, was frequently referred to as a pimp. A pimp can also refer to a person who solicits or procures a prostitute for a patron. See Black’s Law Dictionary, Pimp (7th Ed. 1999). Although the terms may help identify the different actors of sex trafficking, the criminal code does not use them.
Figure 13.2 – Alaska Criminal Code – AS 11.66.110(a)
Alaska largely codifies pandering as sex trafficking in the first degree. See Figure 13.2. First-degree sex trafficking prohibits a person from inducing or causing another person to engage in prostitution through the use of force. AS 11.66.110(a). Recall that force requires some sort of violence, coercion, or the threat of violence. AS 11.81.900(28). Thus, a defendant must use violence (physical or sexual), restraint, or confinement, or the threat of violence, restraint, or confinement to be guilty of first-degree sex trafficking. The crime is a class A felony offense, punishable by up to 20 years imprisonment. AS 11.66.120(c).
If the trafficked person is younger than 20 years old, the inducement need not involve force or coercion. If a person causes a person under the age of 20 to engage in prostitution, regardless of force, the person is still guilty of first-degree sex trafficking. AS 11.66.110(a)(2). Sex trafficking under this provision is aggravated to an unclassified felony offense. AS 11.66.120(d). Thus, a pimp who causes a 19-year-old to engage in prostitution using drugs, alcohol, or psychological manipulation (as opposed to physical violence) faces up to 99 years imprisonment. AS 12.55.125(i). This section is one of strict liability. Unlike the misdemeanor crime of prostitution (where a patron may assert a reasonable mistake of age affirmative defense), there is no reasonable mistake of age defense to first-degree sex trafficking. AS 11.66.110(b); Bell v. State, 668 P.2d 829 (Alaska 1983).
Individuals under the legal custody of another person (a ward or an incompetent person) are treated similar to young victims; a person who causes a person in their legal custody to engage in prostitution, irrespective of force, is guilty of first-degree sex trafficking. AS 11.66.110(a)(3). This provision is intended to reach persons who induce legal wards, incompetent persons, or others in their legal custody to engage in prostitution.
Finally, although a sex-trafficker likely forces a victim to engage in prostitution to make money, compensation is not a required element of the offense. The panderer’s motivation for engaging in sex trafficking is irrelevant for purposes of sex trafficking. The government is not required to prove the defendant received payment, compensation, or something of value from the prostitute.
Prostitution Enterprise
Sex trafficking in the second degree prohibits anyone from owning, managing, or supervising a prostitution enterprise. It also includes the surrounding conduct related to a prostitution enterprise. AS 11.66.120. A prostitution enterprise is an arrangement in which two or more persons agree to engage in a prostitution business – that is, a business designed to render sexual conduct in return for a fee. AS 11.66.150(a). The statute targets the organized prostitution apparatus, but does not include a “place of prostitution,” which is discussed below. The arrangement need not be formal. It can be simple consensual arrangements between a pimp and a prostitute, an agreement between two prostitutes, or larger-scale activities. See commentary, Senate Journal Supp. No. 47, at 108. The enterprise need not be established as an ongoing enterprise. See Gariby v. State, 658 P.2d 1350 (Alaska App. 1983). “Start-up” prostitution businesses qualify. See id.
The law also punishes those who facilitate the enterprise. Those who directly solicit patrons for a prostitute (e.g., a pimp) are punished to the same extent as those who operate or manage the enterprise. AS 11.66.120(a)(2). Those who facilitate travel for prostitution are equally guilty.[1] AS 11.66.120(a)(3). This last provision is intended to specifically target the sex tourism industry in Alaska. See S.B. 12, 2006 Leg., 24th Sess. (Alaska 2006).
Those who enable, assist, or facilitate the prostitution enterprise, but who are not involved in the direct solicitation of patrons or sex tourism, are guilty of a low-level felony – sex trafficking in the third degree. AS 11.66.130(a)(4). A person’s assistance must be done with the intent to promote prostitution. This protects the cab driver who unwittingly drives a person to a brothel. The cab driver would not be acting with the intent to promote a prostitution enterprise. On the other hand, if the cab driver receives a kickback for each person brought to the brothel, knowing it was a prostitution business, then the cab driver is guilty of sex trafficking. The cab driver acted with the intent to promote prostitution and engaged in conduct that facilitated a prostitution enterprise. See commentary, Senate Journal Supp. No. 47, at 108.
A Place of Prostitution
Unlike sex trafficking in the second degree, a person commits the crime of sex trafficking in the third degree if the person receives compensation for running a place of prostitution. AS 11.66.130(a)(2)(A). The legislative commentary indicates the provision is aimed primarily at the “Madam” but applies to any person who maintains a place of prostitution. A place of prostitution means “any place where a person engages in sexual conduct in return for a fee.” AS 11.66.150(2). The term includes physical locations like a bawdy house, a brothel, or an apartment, but also includes such places as a boat, trailer, or van. The structure need not be affixed to the land, nor be part of a prostitution enterprise. See commentary, Senate Journal Supp. No. 47, at 108.
An essential element of the crime is that the defendant received compensation from a prostitute. The prostitute must pay something of value to the defendant for their service. Compensation does not include any payment of reasonably apportioned shared expenses. AS 11.66.145(1). This definition protects prostitutes who may live together and share living expenses. See S.B. 54, 2017 Leg., 30th Sess. (Alaska 2017).
The defendant must also act with the specific intent to promote prostitution. Recall, as a specific intent offense, the defendant must have the conscious objective to bring about the result (prostitution). AS 11.81.900(a)(1). This protects the unsuspecting landlord who unwittingly rents an apartment to a prostitute or pimp. Further, even if the landlord knew the tenant was a prostitute, the landlord is only liable if the government can prove that they acted with the intent to facilitate unlawful sexual activity. See commentary, Senate Journal Supp. No. 47, at 108.
Third-degree sex trafficking also prohibits a person who causes another person over the age of 20 to engage in prostitution. Evidence that the defendant used force to cause the victim to engage in prostitution is not required. AS 11.66.110(a)(2). The statute expressly excludes the patron of the prostitute. (Of course, if the patron causes the prostitute to engage in sexual activity without their consent, the patron is guilty of sexual assault, not sex trafficking.) In essence, this provision covers all non-forcible sex trafficking of adults – when the victim is induced into prostitution through manipulation, not violence or threats.
Those who receive compensation knowing that the money was derived from prostitution are guilty of third-degree sex trafficking if it was received with the intent to promote prostitution. AS 11.66.130(a)(3). This would cover a person who receives money from a prostitute knowing that the money was derived from prostitution. The purpose of the provision is to inhibit the economic, not sexual, aspects of prostitution. See e.g., Johnson v. State, 501 P.2d 762, 767-68 (Alaska App. 1972) (interpreting former statute AS 11.40.300).
Misdemeanor sex trafficking (sex trafficking in the fourth degree) prohibits a person from receiving compensation for knowingly aiding or facilitating a prostitute (as opposed to a prostitution enterprise). This prohibits a cab driver who knowingly directs patrons to an individual prostitute for compensation or a hotel clerk who assists a guest in finding an individual prostitute. See generally S.B. 157, 2007 Leg., 25th Sess. (Alaska 2007) (minutes from May 4, 2007 Senate Judiciary Committee hearing). This statute targets those who assist the prostitute and not the prostitution enterprise. Although still criminal behavior, it is penalized as a misdemeanor, similar to the crime of prostitution. Compare AS 11.66.135(b) and AS 11.66.100(b).
Human Trafficking
Human trafficking is a form of modern-day slavery. It involves the exploitation of people through force, coercion, threats, and deception. It not only includes sexual exploitation but also labor exploitation. The Alaska Legislature has enacted two degrees of human trafficking: first- and second-degree.
Human trafficking in the first degree occurs if a person induces or causes another person to engage in sexual conduct, adult entertainment, or labor by force or deception. AS 11.41.360. Sexual conduct includes any sexual activity and is largely duplicative of sex trafficking. AS 11.41.360(b)(3). Adult entertainment includes sexually explicit performances, such as performing in a strip club or exotic dancing. AS 23.10.350(f)(1)-(3). A person who is forced to engage in exotic dancing against their will is the victim of human trafficking. AS 11.41.360(a). Finally, the law prohibits labor exploitation. Labor exploitation includes domestic servitude, restaurant work, janitorial work, sweatshop factory work, and similar menial labor.
Figure 13.2 – Alaska Criminal Code – AS 11.41.360(a)
Since human trafficking includes exploitation through deception, the statute covers those circumstances in which the trafficked victim is deceived by false promises of a good job or a stable life and then forced into debt bondage – e.g., forced into situations where they are made to work under deplorable condition with little or no pay. Even in those situations where the threat of violence is absent, indentured servitude is a form of human trafficking.
Human trafficking in the second degree occurs when a person receives a benefit from human trafficking with reckless disregard that the benefit was derived from human trafficking. AS 11.41.365(a). Second-degree human trafficking is a class B felony. AS 11.41.365(b).
Sex Trafficking vs. Human Trafficking
A victim of sex trafficking is also frequently a victim of human trafficking, although the inverse is not necessarily true. In cases of sexual exploitation, the government is free to prosecute the trafficker under either statute or both. The crimes, although similar, contain some important differences. Sex trafficking focuses on specific acts surrounding the trafficked victim, including aggravating the offense when children are targeted. It also targets prostitution businesses and houses of prostitution. AS 11.66.110 – 11.66.130. Human trafficking, on the other hand, includes sexual exploitation achieved through deception – that is, promising a victim a modeling contract and a glamorous lifestyle by engaging in commercial sex acts. AS 11.46.360. Sex trafficking through deception is not included in the sex trafficking statutes.
Although an undecided question under Alaska law, it is likely that a defendant convicted of both sex trafficking and human trafficking for the same conduct would face only one sentence. Legally speaking, double jeopardy would likely require merger of the two convictions at sentencing. The Double Jeopardy Clause of the Fifth Amendment protects persons “against multiple punishments for the same offense.” See North Carolina v. Pearce, 395 U.S. (1969); Whitton v. State, 479 P.2d 302, 306 (Alaska 1970). The societal interests surrounding sex trafficking and human trafficking are largely the same – both are designed to protect victims from forced exploitation and criminalize a form of modern-day slavery.
1. The statute prohibits a person from offering, selling, advertising, promoting or facilitating “travel that includes commercial sexual conduct as enticement for the travel.” AS 11.66.120(a)(3). Commercial sexual conduct is defined as “sexual conduct for which anything of value is given or received by any person.” AS 11.66.120(a)(3). Given that the “fee” for purposes of prostitution can be anything of value and need not be cash, the terms “commercial sexual conduct” and “prostitution” are substantially the same. Compare AS 11.66.110(a) and 11.66.120(a)(3). Thus, facilitating travel for someone to engage in prostitution is second-degree sex trafficking in Alaska. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/13%3A_Crimes_Against_Morality/13.03%3A_Prostitution_Sex_Trafficking_and_Human_Trafficking.txt |
The link between violence against people and violence against animals is well-documented. Intimate partner violence frequently includes intentional acts of animal cruelty. And many argue that animal violence is a predictor of future violence against people. Further, animal abuse commonly coexists with other intra-familial crimes, including child abuse, elder abuse, and domestic violence.
According to the National Link Coalition,
• Pet abuse is one of the four most significant risk factors for someone becoming a domestic violence abuser. (Walton-Moss, Manganello et. al., 2005)
• 41% of intimate partner violence offenders had histories of animal cruelty. (Febres et al., 2014)
• 43% of school shooters have histories of animal cruelty. (Verlinden et al., 2000)
• Animal sexual abuse is often linked with child pornography. (Edwards, 2019)
• 60% of families under investigation for child abuse, and 88% for physical child abuse, reported animal cruelty. (DeViney, Dickert & Lockwood, 1983)
• Sexually abused children are five times more likely to abuse animals. (Ascione et al., 2003)
• In one study, 92% of adult protective services caseworkers reported they encountered animal neglect co-existing with their clients’ inability to care for themselves. (Humane Society of the U.S. & State of Wisconsin Department of Health and Family Services, 2003)
Animal Cruelty
By definition, animal cruelty requires harm to an animal, and in Alaska, the crime is largely separated between felony and misdemeanor based on the defendant’s culpable mental state. Put another way, the defendant’s purposefulness largely dictates the severity of the crime. Animal (as a legal definition) is broad and includes nearly all living creatures, but excludes human beings, fish, and invertebrates (e.g., worms, insects, crabs, etc.). AS 11.81.900(b)(3).
Felony animal cruelty – a class C felony – occurs if a person tortures or poisons an animal or is a repeat animal abuser. Torture occurs when a person knowingly inflicts “severe or prolonged pain or suffering” on an animal or kills an animal using a decompression chamber. AS 11.61.140(a)(1); (a)(3). Likewise, if the person intentionally kills a pet or livestock by the use of poison, the crime is elevated to a felony. AS 11.61.140(a)(4). Finally, a prior animal cruelty conviction within the past 10 years (e.g., a recidivist animal abuser) elevates an otherwise misdemeanor animal cruelty to a felony offense. AS 11.61.140(h).
Misdemeanor animal cruelty occurs if a person undertakes responsibility for the care of an animal, and fails to provide the required care, and as a result, the animal dies. AS 11.61.140(a)(2). This provision criminalizes a person’s omission – their failure to adequately care for the animal. This duty does not arise by accident. The statute requires a person to agree to undertake the responsibility. The responsible party could be the animal’s owner, caretaker, or custodian. But once a person accepts this responsibility, they must provide the animal with the necessary care. For example, if a person agrees to kennel a family’s dog, but fails to feed the dog, and as a result, the dog dies, the person could be guilty of animal cruelty. See Sickel v. State, 363 P.3d 115 (Alaska App. 2015).
Because of the strong link between crimes of violence and animal abuse, the statute also criminalizes the killing or injuring of an animal with the intent to intimidate, threaten, or terrorize another person. AS 11.61.140(a)(5).
Finally, the statute criminalizes bestiality – that is, sexual conduct between a person and an animal. The statute prohibits the act of bestiality, the creation of bestiality photographs or videos, and knowingly permitting bestiality to occur on one’s premises. AS 11.61.140(a)(6), (7).
Regardless of the precise theory of animal cruelty, the code provides a defense to animal cruelty if the conduct conformed to accepted veterinary practices, was part of scientific research governed by accepted standards, constituted the humane destruction of an animal, or conformed with accepted training and discipline standards. AS 11.61.140(c). Likewise, it is a defense if the conduct was necessarily incidental to lawful fishing, hunting, or trapping activities. AS 11.61.140(c)(4). This avoids unnecessary overlap and potential conflicts with established regulations by the Boards of Game and Fisheries.
Promoting an Exhibition of Fighting Animals
The code also makes it a felony to intentionally promote, keep, or train fighting animals or knowingly promote or organize a fighting animal exhibition. AS 11.61.145(a), (d)(1). Merely attending a fighting animal exhibition is only a violation (if its the person’s first offense) or misdemeanor (if it is a subsequent offense). AS 11.61.145(a)(3), (d)(2). | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/13%3A_Crimes_Against_Morality/13.04%3A_Animal_Cruelty.txt |
Summary
Crimes against morality are often viewed as conduct that occurs between consenting adults and should not be criminalized. Others argue that such crimes are not victimless at all, but instead, crimes that prey on unsuspecting victims. These crimes include drug and alcohol offenses, gambling, and prostitution.
All states and the federal government criminalize specific conduct relating to controlled substances (i.e., drugs). Jurisdictions classify drugs in schedules, based on their harmful or addictive qualities, and punish drug offenses accordingly. Alaska’s drug schedules are similar to the federal drug schedules, but significant differences exist. Alaska’s drug statutory scheme is largely broken into two groups: possessory offenses and trafficking offenses. Possessory offenses are normally prosecuted at the misdemeanor level, depending on the drug. Trafficking includes the manufacture, delivery, and possession for sale, with the grading ranging from a misdemeanor to a felony, depending on the defendant’s conduct and the drug. Alaska has largely legalized the cultivation, distribution, sale, and possession of marijuana, which potentially violates the federal supremacy clause since the federal government does not legalize marijuana for any purpose.
Alaska has relatively restrictive alcohol laws. In addition to laws that criminalize the possession and sale of alcohol to prohibited persons, Alaska also allows local communities to prohibit the importation, sale, and possession of alcohol if approved by a majority of the community’s voters. Such laws are frequently referred to as local option laws.
The law also permits police to take an individual into protective custody if they are intoxicated or incapacitated. A person taken into protective custody is held until they are sober and no longer a danger to themselves.
Alaska’s gambling laws are intended to criminalize established gambling enterprises and not private social games. A person accused of illegal gambling may assert the affirmative defense of hosting a social game. A social game is when there is no house advantage, house odds, or house income. Gambling enterprises may be prosecuted for promoting gambling, which is a felony. Both gambling proceeds and devices are subject to forfeiture upon conviction. Alaska’s gambling statutes exclude charitable gaming, which permits certain charities to host bingo games and raffles for remuneration.
Although some argue that prostitution should not be a crime, and at least one state (Nevada) has legalized prostitution, Alaska has rejected this view. Alaska treats both sex trafficking and human trafficking as forms of modern-day slavery. Although prostitution is a crime, the legislative history suggests that the legislature views those who practice prostitution are victims of sex trafficking. Prostitution is offering, agreeing, or engaging in sexual conduct for something of value (normally money). Prostitution is a misdemeanor with sentencing enhancements for habitual offenders or patronizing a juvenile prostitute.
Unlike prostitution, sex trafficking focuses on larger commercial sexual activity. Sex trafficking is graded into various degrees, with first-degree sex trafficking being the most serious. First-degree sex trafficking prohibits forcing another person to engage in prostitution through violence or the threat of violence. The code also prohibits prostitution enterprises or maintaining a place of prostitution. Human trafficking is similar to sex trafficking but encompasses a larger course of conduct, including sexual conduct, adult entertainment, or forced labor.
Answer to <"Is Evidence of Drug Use Evidence of Drug Possession?"
The Court of Appeals, in Thronsen v. State, 809 P.2d 941 (Alaska App. 1991), held that while the presence of a drug in one’s body may be considered circumstantial evidence of possession, the presence of drugs in the person’s body alone is insufficient for conviction. To convict a defendant of unlawful possession of a controlled substance, the state must prove that the defendant consciously possessed, either physically or constructively, the substance and that the defendant had actual knowledge of the nature of the substance. A defendant who had previously injected drugs no longer possesses the drugs since the defendant has no dominion or control over the drug. “[C]ontrol is an essential element of possession and that because the host body cannot exercise control or dominion over a substance after it is ingested … the mere presence in the body cannot support a criminal conviction for possession.” You can read the entire Thronsen v. State, 809 P.2d 941 (Alaska App. 1991) online at the University of Alaska Anchorage Consortium Library using your student credentials. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/13%3A_Crimes_Against_Morality/13.05%3A_End-of-Chapter_Material.txt |
Public officials accepting bribes can feel like a dagger in the heart of our democracy. Such acts undermine the very essence of “public duty.” Individuals, while working in a public capacity should act for the benefit of all, and not for the benefit of a few. Alaska has graded both the crimes of Bribery and Receiving a Bribe as class B felonies. Bribery covers the person who bribes a public servant; receiving a bribe covers the public servant who solicits or accepts a bribe. The central evil within both statutes is the unlawful influences impacting public officials in the course of their public duties.
If a person offers a public servant a benefit with the intent to influence the public servant’s exercise of an official action, the person has committed the crime of bribery. AS 11.56.100. The statute does not distinguish between the accepted bribe and the offered, but unaccepted, bribe. The crime is completed once the bribe is offered. It is irrelevant if the public servant accepts the bribe. Bribery is similar to the inchoate offense of solicitation in this regard. For example, the driver who offers a police officer money during a traffic stop to persuade the police officer not to issue a ticket is guilty of bribery. The officer need not accept the bribe for criminal liability to attach.
The public servant commits the crime of receiving a bride if the public servant (1) solicits a benefit with the intent that they will exercise their official discretion to influence an outcome, or (2) accepts or agrees to accept a benefit with the understanding that the public servant will exercise their discretion to influence an official outcome. AS 11.56.110. The public servant need not act with a “corrupt intent;” it does not matter if the public official does not intend to follow through with the promised action. If the official knowingly accepts a benefit with the understanding that the benefit could influence the official’s action, the crime has occurred. See Bachlet v. State, 941 P.2d 200 (Alaska App. 1997). Thus, returning to the above example, if the officer accepts money from the driver, even if the officer had already decided not to issue the driver a ticket, the officer has committed the crime of receiving a bribe.
The term public servant includes any officer or employee of the state, municipality, or political subdivision. AS 11.81.900(b)(56). The public servant need not be a high-level executive or an elected official. The term specifically includes legislators, members of the judiciary, and police officers. It also includes less obvious public servants. Assistant public defenders, for example, fall squarely within its definition even though public defenders work on behalf of their clients, and not the government. Assistant public defenders are state employees and therefore are public servants. See Bachlet, 941 P.2d at 205. The definition does not include jurors, witnesses, or private employees working with the state. AS 11.81.900(b)(56). Separate criminal statutes cover the misconduct of jurors and witnesses. See e.g., AS 11.56.520.
You be the Judge …
Christine Mullin was a professional counselor with Fairbanks Treatment Associates (FTA), a private counseling company under contract with the Alaska Department of Corrections. FTA agreed to provide counseling services to inmates enrolled in the Sex Offender Treatment Program at the Fairbanks Correctional Complex. Mullin provided counseling services to inmates in the program and contributed to reports made for the participants in anticipation of parole hearings.
An FCC inmate in the sex offender program was preparing for an upcoming parole hearing. Mullin offered to provide a favorable progress report to the inmate in exchange for \$25,000. The solicitation was reported to law enforcement and Mullin was ultimately convicted of receiving unlawful gratuities (discussed below). On appeal, Mullin argued that she was not a “public servant” since she was simply an employee of a private company doing work for the State of Alaska. Do you think Mullin is a “public servant” for purpose of the bribery statutes? Check your answer at the end of the chapter.
The Code defines benefit to include any “present or future gain or advantage to the beneficiary.” AS 11.81.900(b)(4). There is no requirement that the benefit is a pecuniary benefit, nor must the benefit result in an economic gain. Not all benefits are economic. For example, a college could take a favorable action in admitting a public servant’s child with the expectation that the public servant would, in return, take some favorable action on behalf of the college.
The statute excludes de minimis benefits that merely serve to provide a “climate for discussion” with a public servant (i.e., picking up a dinner tab or golfing fee) since the “benefit” itself is not intended or expected to influence an official decision. Benefit also excludes legitimate campaign contributions, routine lobbying activities, and campaign promises. AS 11.56.130(1),(3). Such insignificant benefits are better addressed in conflict of interest statutes and ethical conduct regulations. See commentary, Senate Journal Supp. No. 47, at 68-70 (June 12, 1978).
Finally, “benefit” does not include customary and normal negotiations that occur during the legislative process (sometimes referred to as legislative “log-rolling”); legitimate compromise between public officials to reach consensus is neither a benefit nor bribery. AS 11.56.130(2).
Unlawful Gratuities
The crime of receiving unlawful gratuities is a misdemeanor and similar to the crime of receiving a bribe but does not require that the government establish that the public servant received a benefit with an agreement to influence any official act. AS 11.56.120. The offense addresses gratuities received after the public servant has acted. The law focuses on the public servant who solicits or accepts tips, presents, or other unauthorized benefits for simply doing their job.
The law specifically draws a distinction between the act of soliciting a benefit and the act of accepting a benefit. The crime prohibits a public servant from soliciting any benefit, regardless of value. AS 11.56.120(a)(1). The crime also prohibits a public servant from accepting a benefit valued at more than \$50 for having engaged in an official act, which they were required to perform without special compensation. AS 11.56.120(a)(2). Put another way, if a public servant solicits any benefit, they are guilty of a misdemeanor. But if public servant simply accepts a benefit, without soliciting it, they are only guilty of a crime if the benefit was valued at more than \$50.
In the eyes of the legislature, although it is improper for a public servant to accept a benefit for performing their job, it is not criminal unless the value of the benefit is significant. For example, a public servant would not be criminally liable for accepting a box of candy on Christmas when they did not solicit it. The legislature recognizes that such activity is more properly left to personnel regulations and ethical guidelines rather than criminal law. See commentary, Senate Journal Supp. No. 47, at 70-71 (June 12, 1978).
Failure to Report Bribes
Alaska law includes the crime of failure to report a bribe. AS 11.56.124. If a public servant witnesses what they reasonably should know to be a bribe or an official receiving a bribe, the public servant has an affirmative obligation to report the conduct to law enforcement. AS 11.56.124(a). Failure to do so is a misdemeanor. AS 11.56.124(b). This statute criminalizes a public servant’s failure to act and imposes a burden on public servants due to their unique positions of trust within the community. Ignoring or turning a blind eye to ongoing bribery is a crime. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/14%3A_Crimes_Against_Public_Administration/14.01%3A_Bribery_and_Related_Offenses.txt |
Bribery is only one form of public servant misconduct. Closely related are the crimes of official misconduct and misuse of confidential information. Unlike bribery, neither official misconduct nor misuse of confidential information require the exchange or attempted exchange of a benefit. Also, unlike bribery, both are misdemeanors.
The crime of official misconduct occurs when a public servant performs (or fails to perform) an act relating to the public servant’s office, knowing that the act constitutes an unauthorized exercise of the public servant’s official function. AS 11.56.850. The statute covers both malfeasance and nonfeasance. In other words, a public servant can commit the crime by acting improperly as well as failing to act properly.
Official misconduct is a specific intent crime. To be guilty, the public servant must act or refrain from acting with a conscious objective to obtain a benefit or to deprive another person of a benefit. Mere negligent behavior or awareness that a person is being harmed or deprived of a benefit will not establish the requisite culpability.
The act must constitute an unauthorized exercise of the public servant’s official functions, and the public servant must know the act is unauthorized. Take “sealed” court records as an example. As a general rule, all court records are open and accessible to the public. See Alaska Admin. Rule 37.5(c)(5). All court staff, however, are trained that when a judge “seals” a court pleading, the pleading is only available for inspection by court order. This normally occurs when the pleading contains highly sensitive, private, or confidential material. See Alaska Admin. Rule 37.5(c)(5). Neither the public nor the parties to the litigation may review the pleading absent express court authorization. If a court clerk, acting with the intent to advantage someone, shows a “sealed pleading” to a person without court permission, the court clerk has committed the crime of Official Misconduct – the clerk committed an act relating to their office knowing that the act constituted an unauthorized exercise of their official function.
A public servant also commits official misconduct if the public servant knowingly fails to perform a duty imposed by law or that is clearly inherent in the nature of their office. Thus, returning to the court clerk example, if the court clerk fails to file a lien against a friend’s property in order to prevent the lienholder from perfecting their security interest, the clerk would be guilty of official misconduct.
Failing to Perform a Duty …
Erin Pohland and Skye McRoberts were close friends and roommates. Pohland was also a lawyer within the Attorney General’s Office advising the Alaska Labor Relations Agency — the agency within the executive branch that dealt with labor union matters. Pohland’s close friend McRoberts worked as a union organizer for the Alaska State Employees Association. The State Employees Association was seeking to unionize the employees of the University of Alaska. In connection with the effort, McRoberts submitted numerous forged employee “interest” cards to the Labor Relations Agency all of which purported to express interest in becoming union members.
The Labor Relations Agency suspected that the interest cards were falsified, so the Agency contacted Pohland for legal advice about how to proceed with an official investigation. Pohland, purportedly acting as the Agency’s lawyer, advised the agency to not investigate McRoberts.
In this case, Pohland committed the crime of Official Misconduct. Pohland failed to provide her client – the Labor Relations Agency – with proper legal advice with the specific intent to benefit her friend, McRoberts. This was an unauthorized exercise of her official duties. (Pohland also committed an ethical violation that resulted in her disbarment from the practice of law.)
To learn more about the case read Pohland v. State, 436 P.3d 1093 (Alaska App. 2019) and In Disciplinary Matter Involving Pohland, 377 P.3d 911 (Alaska 2016).
Misuse of Confidential Information
Misuse of Confidential Information prohibits a public servant from using confidential information learned in public office for their own benefit. AS 11.56.860. Not all information, however, is confidential. The legislature intentionally provides a very strict definition of confidentiality for purposes of criminal liability. Confidential information means information that has been classified by law. AS 11.56.860(b). Public officials are routinely privy to an extraordinary amount of private, sensitive, or even secret information in the regular performance of their job duties. Information deemed “secret”, “classified”, or “private”, is not confidential, unless a specific statute or regulation deems the information “confidential”. A state employee or bureaucrat may not deem certain records confidential simply by decree or executive order. See commentary, Senate Journal Supp. No. 47, at 92 (June 12, 1978). Only the legislature may classify information “confidential”.
Example of Misuse of Confidential Information
As part of their official duties, Alaska law enforcement officers have access to a significant amount of Criminal Justice Information (CJI). CJI contains highly private and sensitive information gathered by local, state, and federal law enforcement agencies, including a person’s criminal history, driver’s license information, and court information. All criminal justice information is confidential by law. See e.g., AS 12.62.160(a) (noting that “criminal justice information and the identity of recipients of criminal justice information are confidential[.]”). The Department of Public Safety (DPS) maintains all CJI for the state in the Alaska Public Safety Information Network (APSIN).
Law enforcement routinely accesses APSIN when conducting investigations. This can include confirming a person’s identity during a simple traffic stop, extensively reviewing a person’s arrest and criminal history during a serious criminal investigation, or determining if a person has an outstanding warrant for their arrest. These are all proper uses of APSIN. However, if a law enforcement officer accesses APSIN for personal reasons – like to retrieve a phone number of a person they would like to date – the law enforcement officer would be guilty of Misuse of Confidential Information.
Misconduct Involving Confidential information
Like public officials, private citizens may not misuse confidential information. To do so is criminal. When a private citizen obtains another person’s confidential information without the other person’s consent, they commit the crime of Misconduct Involving Confidential Information in the Second Degree. AS 11.76.115. Unique to this statute, however, “confidential information” includes not only information classified as confidential by law, but also information encoded on an access device, identification card, or driver’s license. AS 11.76.115. This information is not necessarily “confidential” but is private. AS 11.76.116(c). Thus, if a person surreptitiously obtains private information encoded on an identification card or credit card without the owner’s consent (e.g., “credit card skimming”), the person is guilty of second-degree misconduct involving confidential information. The statute does not require the private information to be used in any nefarious manner. The actus reus of the offense is obtaining the encoded information (not using the information) and the culpable mental state is knowing. The crime is aggravated to misconduct involving confidential information in the first degree if the stolen information is used to commit a crime, obtain a benefit, or unlawfully publish information from a child-victim investigation. AS 11.76.113(A)(1). Both crimes are misdemeanors, similar to the misuse of confidential information discussed above.
Interference with Constitutional Rights
A rarely prosecuted, and distant cousin, to the crimes listed above is the crime of Interference with Constitutional Rights. I say distant cousin because, with one exception, the offense does not require the defendant to be a public official or nor does it relate to private or secret information.
The crime of interference with a constitutional right is intended to protect the exercise of a person’s state constitutional and statutory rights. AS 11.76.110. The statute is modeled after the criminal counterpart to the Federal Civil Rights Act (18 USC § 241, 242). See commentary, Senate Journal No. 47, at 121-22 (June 12, 1978). But even though the statute is modeled after the federal law, the statute excludes violations of federal law. A person who violates a person’s federal constitutional rights could be prosecuted under the federal criminal code by the federal government.
Figure 14.1 – Alaska Criminal Code – AS 11.76.110.
As you can see, a person can violate the statute in three different ways. The first is by injuring or threatening a person with the intent to deprive that person of a right granted by state law or the state constitution. For example, state law guarantees all registered voters the right to vote in a state election. AS 15.07.010. A person who threatens another person with the intent to prevent that person from voting would be guilty of a crime under this statute. AS 11.76.110(a)(1).
The second way the crime may be committed is by retaliating against someone because they have exercised a right granted by state law or the state constitution. For example, if, after leaving the polling place on election day, a person is assaulted because they voted, the crime of Interference with Constitutional Rights has occurred.
Finally, the crime is committed if a person, acting “under color of law”, intentionally deprives another person of a right guaranteed by state law or the state constitution. Thus, if an election official prevents a citizen from voting because the official knows the voter’s political affiliation, the election official could be liable under this section. AS 11.76.110(a)(3).
What constitutes a constitutional or statutory right is a question of law. The court, not the jury, determines whether the right interfered with was protected by the constitution or statute. AS 11.76.110(b). Importantly, the perpetrator need not know that their interference was impacting a protected right. As noted by the drafters, “while the [statute] requires that the defendant act intentionally, use of the phrase ‘in fact’ to describe the protected rights means the defendant need not be aware that the right, privilege, or immunity with which he is interfering is of statutory or constitutional origin.” See commentary, Senate Journal No. 47, at 121-22 (June 12, 1978).
The crime is relatively minor. Like all of the crimes in this section, Interference with a Constitutional Right is a misdemeanor. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/14%3A_Crimes_Against_Public_Administration/14.02%3A_Abuse_of_Public_Office_%28Official_Misconduct%29.txt |
The legal system is built on an underlying principle that all witnesses will provide truthful information to the decision-maker. This principle defines who may be a witness and when a witness may testify. Individuals who cannot understand the difference between a truth and a lie lack the capacity to testify. See Alaska Evidence of Rule 601. Witnesses who refuse to promise to tell the truth (by oath or affirmation) are prohibited from testifying. See Alaska Evidence Rule 603. All witnesses must understand the concept of the truth and affirmatively express a willingness to undertake the duty to tell the truth before testifying. This is one way the legal system ensures that every witness gives accurate and honest testimony.
Perjury
Perjury – a false statement made under oath – is the antitheses of a truth-seeking legal system. Punishing perjurers is necessary to protect the integrity of the legal system. See Lawson v. Helmer, 77 P.3d 724 (Alaska 2003).
Perjury occurs if a person makes a false sworn statement that they do not believe to be true. AS 11.56.200(a). The false statement need not be material to the outcome of the legal proceeding. Instead, the statement must be objectively false, and the person must know that the statement is false. See LaParle v. State, 957 P.2d 330, 335 (Alaska App. 1988). Thus, the statement “I believe the car was red” is a false statement if the defendant believed the car was a different color. The actual color of the car is irrelevant. The falsity of the statement does not depend on the actual color of the car. See commentary, Senate Journal Supp. No. 47 at 72 (June 12, 1978).
Perjury encompasses all false sworn statements, not just those statements made in court. See In re Ivy, 374 P.2d 374 (Alaska 2016). Thus, lying during a court proceeding, lying in an affidavit, or lying in a formal response to a civil interrogatory, all are acts of perjury. A sworn statement is simply a representation of fact given under oath, affirmation, or “penalty of perjury”. AS 11.56.240(2). The forum of the sworn statement is immaterial. All that is required is that the statement was knowingly false when given under oath or affirmation attesting to the truth of what was stated. AS 11.56.240(2).
Unsworn Falsification
A related, and likely lesser-included, offense is the crime of Unsworn Falsification. AS 11.56.205-210. Unsworn falsification prohibits making a false statement to a public servant, regardless of whether the statement was made under oath. Alaska has graded unsworn falsification into two degrees: first- and second-degree unsworn fasciation.
A person commits the crime of second-degree unsworn falsification if (1) the person makes a false statement, (2) with the intent to mislead a public servant in the performance of their duty, (3) that the person does not believe to be true, and (4) the statement is made in an application for a benefit or is made on a form bearing notice that false statements are punishable as such. AS 11.56.210. For example, if a person falsely states that they have lived in Alaska for 10 years in an effort to obtain a “resident-only” fishing license, the person is guilty of second-degree unsworn falsification, a class A misdemeanor. The person made a statement known to be false with the intent to mislead a public servant in an application for a benefit – the State’s resident fishing licensing preference.
Aggravated unsworn falsification (first-degree unsworn falsification) occurs if the false statement was made on an application for the Alaska Permanent Fund Dividend. AS 11.56.205(a). Knowingly providing a false statement on the permanent fund dividend application evaluates the crime from a misdemeanor to a class C felony. AS 11.56.205(c).
Neither perjury nor unsworn falsification requires corroboration. AS 11.56.200. A conviction can properly flow from the uncorroborated testimony of a single witness. This is a significant departure from prior law. The Alaska Supreme Court had previously stated that a perjury conviction must be corroborated by direct or circumstantial evidence; uncorroborated testimony – standing alone – was insufficient. See Nelson v. State, 546 P.2d 592 (Alaska 1976) (noting that allowing perjury convictions based on uncorroborated witnesses simply results in prosecutions of “an oath against an oath” and increases the likelihood of “ill-founded retaliatory attacks”). The Alaska Legislature expressly overruled this decision with the passage of the Revised Criminal Code. Now, a perjury conviction need not be based on a particular number of witnesses or a particular amount of documentary evidence. AS 11.56.200. A single witness is sufficient. This rule, of course, does not alter the government’s burden of proof. The government is still required to prove the defendant knowingly made a false sworn statement beyond a reasonable doubt. Thus, even though the law allows a perjury prosecution to proceed based solely on the testimony of a single witness, a perjury conviction in such cases may be difficult to obtain.
If a person makes two statements under oath or affirmation that are irreconcilably inconsistent, to the degree that one of them is necessarily false, but it impossible to identify which statement is false, the person is guilty of Perjury by Inconsistent Statements. AS 11.56.220. This crime resolves a potential impediment to a traditional perjury prosecution. Since the crime of perjury requires the defendant to make a specific false statement, the government must be able to prove that the particular statement was false. If the government is unable to identify the false statement, the defendant is not guilty of perjury. The crime of Perjury by Inconsistent Statements resolves this dilemma.
For example, consider a situation where Jones testifies to a grand jury that Brown came into his office and attempted to extort money from him. As a result of Jones’s testimony, Brown is indicted for extortion under AS 11.41.520. At Brown’s subsequent trial, Jones testifies that he has never met Brown, that Brown never came to his office and that no one attempted to extort money from him. If there is no other way to prove whether Brown came to Jones’s office to extort money, other than by the testimony of Jones, the state may not be able to convict Jones of perjury even though Jones’s two statements are irreconcilable to the degree that one of them must be necessarily false. Although Jones may not be guilty of perjury, he is guilty of perjury by inconsistent statements. Note that Brown’s criminal liability for extortion is separate and distinct from Jones’s criminal liability for perjury by inconsistent statements. See commentary, Senate Journal Supp. No. 47 at 74-75 (June 12, 1978).
Although perjury by inconsistent statements is a separate offense, the prosecution cannot simply rely on the introduction of the irreconcilable statements; the government must also establish that the defendant did not believe one of the statements to be true at the time the statement was made.
A person charged with perjury or a related offense may raise the affirmative defense of retraction. The defense is extremely limited and complex, but allows a person to retract a false statement before its falsity is known and before reliance on the statement has occurred. AS 11.56.235. Specifically, the affirmative defense is only available if the defendant expressly retracts the false statement during the course of the same proceeding and before the case is submitted to the ultimate trier of fact (e.g., grand jury or jury). AS 11.56.235. For example, a defendant may not raise the defense of retraction if, following the grand jury’s indictment, they contact the prosecutor in an effort to retract their earlier false grand jury testimony. The retraction did not occur during the same proceeding; the defendant is guilty of perjury. See e.g., Trinidad v. State, 1997 WL 688541 *2 (Alaska App 1997).
Exercises
Answer the following questions. Check your answers using the answer key at the end of the chapter.
1. John and Mary moved to Alaska from California on July 1, 2019. Two weeks later, on July 15, they apply for a resident hunting license. John states on his application that he came to Alaska on July 1, 2018. On her application, Mary correctly states that she came to Alaska on July 1, 2019, but puts her birthdate down as November 1, 1970, knowing that her birthdate is actually November 1, 1965. Have any crimes been committed? If so, which ones? Explain why?
2. Don, a real estate agent receives a \$1,000.00 check as earnest money on a house he is selling for Tom. Instead of placing the check in an escrow account for Tom, Don keeps the money for himself. Tom sues Don, the real estate agent for the \$1,000.00. In a sworn deposition, Don falsely states that the money was put into a trust account. In fact, Don put the money into his own account and used it for his own use. Has Don committed perjury? If so, why? | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/14%3A_Crimes_Against_Public_Administration/14.03%3A_Perjury_and_Related_Offenses.txt |
Obstructing justice is defined as “impeding or obstructing those who seek justice in a court[.]” See Obstructing Justice, Black’s Law Dictionary (6th ed. 1990). The term applies to a host of activities that obstruct the administration of justice, including preventing witnesses from appearing, assaulting process servers, influencing jurors, or interfering with criminal investigations. “Obstruction of Justice” is not a crime in Alaska, but the actions that encompass it surely are.
Obstructing justice is simply a broad classification of proscribed conduct that seeks to subvert the legal system. Those who interfere with the legal process through threats, manipulation, or undue influence erode society’s faith in the legal process and procedural justice is impossible unless the government can protect the integrity of the process. We believe that the ultimate decision-maker (i.e., judge or jury) will make its decision free from influence and witnesses will testify truthfully without external pressure.
Conduct that interferes with these principles is prohibited and offenses that interfere with the administration of justice are largely categorized between conduct that involves violence and bribery and conduct that does not. The former is normally graded higher (and has higher penalties).
Interference with Official Proceedings
Interference with Official Proceedings is the most serious offense within this category. The statute punishes threats and bribery when such conduct is directed at witnesses, jurors, or the proceeding’s outcome. See Figure 14.1.
Figure 14.2 – Alaska Criminal Code – AS 11.56.510
As you can see, the crime prohibits both the use of force and threaten force against witnesses or jurors. The offense is a specific intent crime. The defendant must act with the intent to “improperly influence” the testimony of a witness. This term – improperly influence a witness – means to cause a witness to testify falsely, offer misleading testimony, or unlawfully withhold testimony. AS 11.56.900(1)(A). It also includes causing a witness to avoid the legal process, absent themselves from a hearing, or engage in evidence tampering. AS 11.56.900(1)(B)-(D). In other words, the statute prohibits any attempt to influence the testimony of a witness if done with force, threats, or bribery. Motive is irrelevant. An individual who beats up a witness to compel the witness to testify truthfully is just as culpable as the person who threatens a witness to ensure they avoid legal process.
Threats need not be explicit. Veiled threats suffice. If the defendant’s words or conduct could reasonably communicate an intention to inflict harm, then the defendant has “threatened” the witness. See e.g., Baker v. State, 22 P.3d 493 (Alaska App. 2001). Thus, it is just as criminal to tell a witness that she had “better shut her mouth, or I’ll shut it for her”, as it is for a person to overtly threaten to kill the witness if she shows up to court. See id. at 497.
Violence or threats of violence directed at jurors, if done with the intent to influence the juror’s vote, opinion, or decision, is equally prohibited. AS 11.56.610(a)(1)(B). Assaultive conduct that interferences with a juror’s ability to make its decision is punished to the same level as threats directed at witnesses.
The statute also prohibits a defendant from using force (or threatening the use of force) to retaliate against a witness or juror because the person participated in an official proceeding. AS 11.56.510(a)(1)(C). Thus, a defendant who threatens a juror after a trial (because the juror voted to convict) is still guilty of official interference, even though the conduct occurred after the verdict.
Finally, the statute criminalizes any threatening conduct designed to affect the outcome of the official proceeding. AS 11.56.510(a)(1)(D). This would include threatening to hurt a juror’s family offering a bribe to a witness with the intent to cause a mistrial or general menacing behavior directed at a judicial officer if done to obtain a particular result.
The statute contains a second general prohibition – the prohibition against bribing witnesses or jurors with the intent to improperly influence the witness’s testimony or juror’s opinion. AS 11.56.10(a)(2). This provision is similar to the code’s general bribery statute but is specifically tailored to protect witnesses and jurors. Bribery is treated as serious as threats of violence.
The statute protects more than criminal jury trials. Official proceeding is defined as a proceeding “heard before a legislative, judicial, administrative, or other government body … authorized to hear evidence under oath.” AS 11.81.900(b)(43). Thus, a person who threatens a witness during a legislative hearing is just as guilty as the person who threatens a witness during a criminal jury trial.
The term witness is broadly defined. Witness means a person summoned or appearing to testify in an official proceeding or a person who the “defendantbelieves may be called as a witness in an official proceeding, present or future”. AS 11.56.900(6). The code explicitly defines witness from the perspective of the person charged with interfering with the official proceeding (i.e., the defendant). Thus, if the defendant believes a person may be a witness in an official proceeding, it is immaterial that the person is in fact, not a potential witness. Likewise, it is immaterial whether the government knows the person is a witness. So long as the defendant knows the person is a potential witness, the person is a “witness” for criminal liability. This definition avoids confusion as to when an individual actually becomes a witness and instead, focuses on protecting witnesses and the integrity of the system.
The term juror includes all members of impaneled juries, including grand juries, as well as persons who have been drawn or summoned to appear as prospective jurors. Thus, a person threatened on their way to jury duty is entitled to receive the same protection as the impaneled juror. AS 11.56.900.
Constitutional Challenges
Because these offenses limit a person’s speech, the question frequently arises whether such speech is protected under the First Amendment. Recall that doctrine of free speech does not protect all speech. Although a person may use caustic, offensive, and even potentially intimidating language in communication, the First Amendment does not protect “true threats.” As described by the Alaska Court of Appeals, “a person has no First Amendment right to ask other people to lie under oath or to try to persuade them to do so.” See Baker v. State, 22 P.3d 493 (Alaska App. 2001). The difficulty is distinguishing between threats and hyperbole. Hyperbole, particularly political hyperbole, is protected speech, and in the eyes of the U.S. Constitution, necessary to ensure a robust, wide-open debate about governmental policy.
You be the Judge …
William, a resident of Valdez, learned that the local telephone company had terminated his cell phone service without his prior knowledge. The dispute progressed until William filed a civil complaint in Valdez Superior Court against the telephone company. Shortly after the telephone company filed its Answer, William went to the courthouse and spoke with a state magistrate. William demanded that his case be set for a jury trial immediately. The magistrate explained to William that setting a trial date was not a simple task and required the involvement of a Superior Court Judge in Anchorage.
William grew angry and began yelling at the magistrate. The magistrate became so frightened that she locked the door to her chambers. William eventually left. Two days later, Williams sent the following letter to the courthouse:
To Whom It May Concern:
I am still waiting for my trial date in the above case. When the telephone company suspended phone service to my business it was for the express purpose of forcing hardships upon my family. I’ve had enough. I told them when I lost my home if I had not received a fair trial by jury I was going to kill the things. Last week I signed a quitclaim to my home and property. I can stay until I get an honest trial or someone else buys the property. As far as I am concerned the things are living on borrowed time. And this is the last time I am asking for my rights as a human.
After learning of the letter, law enforcement interviewed William. William confirmed that the letter’s apparent threat to kill “the things” was directed at the magistrate. William also told officers he wrote the letter in the hopes that he would be arrested so he could receive a trial date sooner. The government indicted William on one count of interference with official proceedings in violation of AS 11.56.510(a)(1)(D) for sending the threatening letter.
Based on these facts, would William be successful in arguing that the statute impermissibly infringed upon his First Amendment rights? Check your answer at the end of the chapter.
Receiving a Bribe by a Witness or Juror
Just as the law prohibits a person from bribing a witness or juror, the law equally prohibits a witness or juror from receiving a bribe. The crime of Receiving a Bribe by a Witness or Juror is committed when a witness or juror solicits, accepts, or agrees to accept, a benefit with the understanding that they will be improperly influenced as a witness or as a juror. AS 11.56.520. Receiving a Bribe is a class B felony offense, similar to Interference with a Official Proceeding and is punishable by up to 10 years imprisonment. Again, this statute is modeled after the code’s general bribery statute.
Witness Tampering
Witness tampering criminalizes conduct that unduly influences a witness’s participation or testimony in a judicial hearing. Alaska has separated witness tampering into two degrees: first- and second-degree witness tampering. The former is a class C felony, whereas the latter is a class A misdemeanor.
A person commits the crime of first-degree witness tampering if the person knowingly induces a witness to testify falsely, offers misleading testimony, unlawfully withholds testimony, or causes the witness to be “absent from a judicial proceeding to which the witness has been summoned”. AS 11.56.540.
This is much different than the crime of interference with an official proceeding discussed above. Witness tampering does not involve the use of force, threats, damage to property, or bribery. Merely inducing a witness is not as blameworthy as threatening violence or offering a bribe.
Persuading a witness to avoid legal process (for example, to avoid being served with a subpoena) is not a crime, unless the defendant uses forces or the threat of force. This line – the line between witness tampering and lawfully explaining the legal process – is a fine one. It is not unlawful to instruct a witness that they need not appear in court or testify unless subpoenaed. It is not unlawful to tell a witness to refuse to cooperate with law enforcement. It is not unlawful to tell a witness not to elaborate with asked questions. See e.g., Rantala v. State, 216 P.3d 550, 555 (Alaska App. 2009). It is unlawful to disobey a court order. Once a subpoena has been served, any persuasion, done with the intent to cause the witness to disobey the subpoena, constitutes witness tampering.
Further, context matters. If a defendant tells a witness to be non-cooperative or avoid process, and in context, the defendant is attempting to pressure the witness to testify falsely or withhold testimony, then the defendant is guilty of witness tampering.
You be the Judge …
Boggess began sexually abusing his eleven-year-old stepdaughter during the summer of 1985. During the police investigation, officers learned that Boggess’s wife could corroborate some of her daughter’s statements. Immediately before the grand jury presentation, a witness heard Boggess tell his wife to “plead the fifth” or “break down and cry” instead of answering the prosecutor’s questions.
Upon hearing this evidence, the grand jury indicted Boggess with first-degree witness tampering for attempting to induce his wife to “unlawfully withhold testimony in an official proceeding.”
do you think this conduct is witness tampering or witness preparation? Why or why not? Check your answer at the end of the book.
Second-degree witness tampering occurs if a person knowingly induces a witness to be absent from an official proceeding, other than a judicial proceeding, to which the witness has been summoned. AS 11.56.545. Thus, a defendant who causes a person to be absent from a legislative, administrative, or other adjudicative hearing after being summoned, is guilty of misdemeanor witness tampering. The offense is only elevated to a felony if the hearing is a “judicial proceeding”.
Jury Tampering
The crime of jury tampering is committed when a person directly or indirectly communicates with a juror other than as permitted by court rules. AS 11.56.590. The perpetrator must act with the intent to influence the juror’s vote. The crime of jury tampering differs from interference with an official proceeding only in one respect – a lack of bribery or force. If the attempt to influence a juror’s vote is committed without a bribe and without force (or the threat of force), the tampering is less serious in the eyes of the law – it only constitutes a class C felony. Threatening a juror or bribing a juror, on the other hand, is a much more serious offense.
Misconduct by a Juror
Conversely, misconduct by a juror is committed when a juror promises, before submission of the case to the jury, to vote for a particular verdict. AS 11.56.600. This includes conduct that may only cause a mistrial (i.e., refusing to reach unanimity for purpose of a verdict). Note that this crime supplements the trial court’s general power of contempt of court. Contempt of court is the inherent power to punish a person for the willful disobedience of a court order. A court always has the power to hold a juror in contempt should the juror violate a court rule.
Misconduct by a juror is similar to the crime of receiving a bribe by a juror, but unlike receiving a bribe, this crime does not require the consideration of a benefit. Instead, the crime simply requires the juror to agree to a particular verdict outside of the trial process.
Simulating Legal Process
The crime of simulating legal process is a relatively new and very rarely charged offense. It protects the legitimacy of government administration by maintaining the public’s trust and confidence in genuine governmental documents. The offense prevents a person who is attempting to collect a debt from using a document that has the appearance of being court-issued, such as an attachment, execution, judgment, or lien. AS 11.56.650(2). It also covers the fraudulent use of subpoenas, summons, and similar documents (i.e., warrants) that have the appearance of being court-issued. AS 11.56.650(2).
What is simulating legal process anyhow?
Ed and Paul are in a dispute over the property boundaries on their adjoining land. Ed sued Paul in small claims court. Ed asks the previous owner of the land, Sam, to testify in court. Sam refuses to testify unless ordered to do so by the court. Ed knows it’s too late to get the court to issue a subpoena. Ed makes a copy of another subpoena, changes the name to Sam, and sends it to Sam.
In this example, Ed has committed the crime of simulating legal process by issuing and sending a simulated subpoena with the intent to cause Sam to appear at trial. (Note: Ed has also likely committed second-degree forgery under AS 11.46.505(a)(2) for falsely altering a written instrument that is a public record.)
Tampering with Physical Evidence
The crime of tampering with physical evidence prohibits tampering with “physical evidence” – a term that refers to any “article, object, document, record, or other thing of physical substance.” AS 11.56.900(4). The object need not be admissible evidence or evidence admitted in court. It simply needs to an object that is relevant to the investigation.
The code outlines three separate methods of tampering with physical evidence. AS 11.56.610. As you will see, evidence tampering is a specific intent crime – the offender must have a conscious objective to achieve the intended result. First, the offense prohibits the intentional destruction, mutilation, alteration, concealment, or removal of physical evidence with the intent to “impair its verity” (i.e., truthfulness) or its “availability in a criminal investigation.” AS 11.56.610(a)(1). Second, the crime prohibits the making, presenting, or using evidence known to be false in a proceeding with the intent to mislead a juror or a criminal investigation. AS 11.56.610(a)(2). Third, the offense prohibits the use of force, deception, or threats to prevent the production of physical evidence during a criminal investigation. AS 11.56.610(a)(3). Finally, the statute criminalizes conduct identical to the above three paragraphs, but done with the intent to prevent the initiation of an official proceeding. This final paragraph covers those situations where a person tampers with physical evidence, with the intent to prevent the initiation of a non-criminal official proceeding (i.e., a legislative or civil investigation). AS 11.56.610(a)(4).
As a crime, evidence tampering has broad reach. Every act of evidence tampering is a felony regardless of the underlying offense. Thus, it is irrelevant that the underlying offense to which the evidence relates is a misdemeanor or violation. The destruction or alteration of evidence constitutes a felony offense. See Y.J. v. State, 130 P.3d 954 (Alaska App. 2006).
You be the Judge …
Officers received a detailed report of a shooting near a residence in Fairview. Although no one was injured in the shooting, several individuals provided officers with a detailed description of the shooter and the vehicle involved. Officers located the suspect’s vehicle quickly and attempted to stop it. A chase ensued through the neighborhood. During the chase, the driver, Anderson, tossed several items related to the shooting out of the vehicle, including the handgun, the firearm’s magazine, and a box of matching caliber ammunition.
Do you think Anderson has committed the crime of tampering with physical evidence for throwing the items out of the car window under AS 11.56.610(a)(1) (that is, for concealing the evidence with the intent to impair its availability in a criminal investigation under)? Check your answer at the end of the chapter.
Exercises
Answer the following questions. Check your answers at the end of the chapter.
1. Two months after the shooting of Victor, detectives learn that a witness (Bobby) saw the suspect, Homer Frink, shoot Victor. When interviewed, Bobby tells detectives that he did not come forward earlier because Frink threatened to shoot Bobby if he talked to the police. In addition to homicide, what crime has Frink committed? Why or why not?
2. In response to a newspaper ad seeking information about witnesses to a collision between two cars, John Citizen reports that Bobby Bystander was standing at the intersection when the car driven by the defendant ran the red light and was struck broadside by the car driven by Plaintiff. The Plaintiff has hired a private investigator, Rick, to contact witnesses. Investigator Rick contacts Bobby who at first refuses to say anything. Bobby tells Investigator Rick he does not want to be involved. Investigator Rick then offers Bobby \$500.00 to tell him what he saw. Bobby accepts the money and tells Rick that he saw the defendant run the red light. Has Investigator Rick committed a crime? Why or why not? | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/14%3A_Crimes_Against_Public_Administration/14.04%3A_Obstruction_of_Justice.txt |
Summary
Bribery undermines our trust in government. Bribery is offering or agreeing to offer a benefit to a public servant with the intent that the public servant will alter their official decision. A public servant is guilty of Receiving a Bribe if the public servant accepts (or offers to accept) a benefit to alter their official decision. The term “public servant” includes any state government employee but does not include jurors, witnesses, or private employees working with the state. Jurors and witnesses are prohibited from accepting bribes but under a different statute. Just as it is illegal to accept a bribe, it is illegal to fail to report a bribe. Some low-level, de minimis gratuities are excluded from the criminal code and are treated under the respective ethics rules instead. A public servant can also commit the crimes of official misconduct and misuse of confidential information. Such crimes do not require the exchange or acceptance of a benefit.
Truthful testimony is essential to our legal system and those who lie under oath erode our belief in that system. Perjury occurs if the person knowingly makes a false sworn statement. The statement must be objectively false, and the person must know that the statement is false. The term “statement” is broadly defined and does not require the statement to be made during a court proceeding. A statement in an affidavit or made on a document under the “penalty of perjury” is sufficient for purposes of perjury. If a person makes two irreconcilably inconsistent statements under oath to the degree that one of the statements must necessarily be false, the person has committed the crime of perjury by inconsistent statements. A person can avoid criminal liability for perjury if the person retracts the false statement during the same proceeding. Retraction is an affirmative defense and is extremely limited in scope. Unsworn falsification is similar to perjury but occurs when a person makes an unsworn false statement to a public servant on an application for a benefit. Unsworn falsification is generally a misdemeanor. If a person makes a knowingly false statement on an application for the Alaska Permanent Fund Dividend, the crime is aggravated to a felony.
Obstruction of justice crimes interfere with the orderly administration of justice. Interference with official proceedings is the more serious offense within this category. It criminalizes threatening a witness or juror and bribing a witness or juror. These statutes can raise constitutional concerns if they target protected speech. Recall, however, that the First Amendment does not protect against “true threats”. The code also criminalizes witness tampering. If a person induces a witness to testify falsely, offer misleading testimony, unlawfully withhold testimony, or causes the witness to be absent from the proceeding, the person is guilty of witness tampering. Providing a witness with legal advice about the court process or preparing a witness to testify is not witness tampering.
Finally, tampering with physical evidence is a felony in Alaska. Evidence tampering is a specific intent crime. The crime is committed in one of three ways: first, a person may not destroy, mutilate, conceal, or remove physical evidence with the intent to interfere with a criminal investigation; second, a person may not make, present, or use false evidence with the intent that it will be used in a criminal investigation; finally, a person may not use or threaten the use of force to prevent the production of physical evidence during a criminal investigation. Tampering with physical evidence is always a felony offense regardless of the severity of the underlying offense to which it relates.
Answers to “You be the Judge” Exercises
From “You be the Judge” in Bribery and Related Offenses
• In State v. Mullin, 778 P.2d 233 (Alaska App. 1989), the Alaska Court of Appeals ruled that Mullin was not a public servant under the bribery states. Under the Rule of Lenity – that is, ambiguous criminal statutes must be interpreted in favor of the accused – the public servant definition did not include employees of private companies working under a contract with the state. Since the statutory definition of “public servant” was not sufficiently clear, private employees must be excluded. You can access the opinion using Westlaw Campus Research through the Consortium Library at the University of Alaska Anchorage using your UA credentials.
From “You be the Judge: William” in Obstruction of Justice
• In Melguin v. Hames, 38 F.3d 1478, 1484 (9th Cir. 1994), the Ninth Circuit Court of Appeals noted that the defendant’s threats “to kill things” were directed at a state judicial officer, which squarely falls within the proscribed conduct of AS 11.56.510(a)(1)(D). Such threats were not mere “political hyperbole”. Although the court must distinguish between true threats and protected speech, context matters. In this case, a threat to “kill the things” made in a private communication to a state judicial officer with the intent to obtain an immediate jury trial, was a true threat (as opposed to “crackpot communication” that should be disregarded by the Court).
From “You be the Judge: Boggess” in Obstruction of Justice
• In Boggess v. State, 783 P.2d 1173 (Alaska App 1989), the Court of Appeals found that Boggess’s instruction to his wife for her to plead the Fifth Amendment or break down and cry if asked about incriminating information was sufficient to establish that Boggess was guilty of witness tampering. The jury could have reasonably concluded that Boggess was attempting to persuade his wife that she should testify misleadingly or illegally withhold testimony.
From “You be the Judge: Anderson” in Obstruction of Justice
• In Anderson v. State, 123 P.2d 1110 (Alaska App. 2005), the Court of Appeals held that the act of tossing the handgun, the magazine, and the ammunition from the car did not satisfy the actus reus of evidence tampering. According to the court, the crucial inquiry is whether the defendant’s action disguises the evidentiary value of the article – that is, whether the defendant disposed of the evidence in a manner that destroyed it or that made its recovery substantially more difficult or impossible. Under the facts of Anderson, the defendant’s act of tossing the handgun, magazine, and ammunition out of the car did nothing to disguise the evidentiary value of the items, especially when the defendant did it in the sight of the police. See id. at 1119.
Answers to End of Chapter Exercises
From Perjury and Related Offenses
1. As to John, John has committed unsworn falsification in the second degree. See AS 11.56.210(a)(1). He made a false statement in an application for a government benefit, the hunting license at the reduced, resident fee. Because there was a motive for the false statement, it is fair to infer that he acted with the intent to mislead a public servant. As to Mary, she made a false statement but there was no advantage to her to making the false statement (it would not have led to a benefit), so it is unlikely that a jury would infer that she acted with an intent to mislead a public servant. Instead, it is fair to conclude that she acted out of mistake or, more likely, vanity.
2. Don has committed the crime of perjury. See AS 11.56.200(a). He made a false sworn statement that he did not believe to be true. There is no requirement that the sworn statement be made in court.
From Obstruction of Justice
1. Frink has committed the crime of interference with official proceedings, under 11.56.510(a)(1)(A) for threatening the witness with intent to influence the witness not to testify – that is, Frink threatened Bobby so he would not show up, testify, or cooperate with the police. As the legislative commentary makes clear, the term “witness” includes anyone the suspect “believes may be called as a witness” in the future. It is irrelevant that the detectives did not know Bobby’s identity.
2. Investigator Rick has not committed a crime. Tampering with a witness under AS 11.56.540 prohibits a person from inducing or attempting to induce a witness to testify falsely. Investigator Rick has reason to believe that Bobby will be a witness in the civil action. Under these facts, Investigator Risk did not attempt to induce false or misleading statements or testimony. | textbooks/biz/Criminal_Law/Alaska_Criminal_Law_2022_(Henderson)/14%3A_Crimes_Against_Public_Administration/14.05%3A_End-of-Chapter_Material.txt |
What is criminal law?
Of the various subjects a student encounters in an American law school, criminal law may appear the most familiar. From an early age, every American is exposed to depictions of various aspects of the criminal legal system. Police (and “robbers” and “burglars”) appear in children’s books and toys. Criminal investigations and prosecutions are dramatized in television and movies. In the news media, there is ample, perhaps exaggerated, coverage of crimes, arrests, trials, and punishments. Criminal law appears everywhere, in part because in the United States it is nearly everywhere: this country uses criminal legal interventions with a frequency and severity unmatched in most other nations. For this reason, many of the ideas and terms you encounter in this book will be ones you’re likely to have heard before: charges, conviction, presumption of innocence, proof beyond a reasonable doubt, to give a few examples—along with terms of critique such as mass incarceration and racial bias and overcriminalization.
Criminal law seems familiar, but the apparent familiarity can be misleading. Media or cultural depictions of criminal law are often inaccurate, and these depictions won’t teach you to practice law or to pass a bar exam. This book does pursue those goals, and others. It seeks to give you an understanding of American criminal law that will be useful whether you practice in this field or a different area of law, and indeed, an understanding that will be useful even if you do not practice law at all. With so much criminal law everywhere in the United States, understanding how this area of law operates is crucial for any lawyer.
Notwithstanding the seeming familiarity of criminal law, many students eventually find the subject to be very different from what they expected “law” to be. To minimize confusion, it is useful to begin with some basic descriptions. What makes criminal law the same as other areas of law? That is, what makes it law? And what makes criminal law different from other areas of law? What makes criminal law a distinctive field?
Philosophers have no single answer to the question, what is law, and dictionaries identify the word as one with multiple meanings. We speak of the laws of physics, for example, but those statements about the observed properties of physical objects are very different from the kinds of laws that one studies in law school. For the purposes of this book, law can be understood as a human practice that involves both authoritative written texts and decisions by public officials. Text and decision: it will be important to keep both in mind as you study criminal law. For example, a statute that defines “burglary” is a written text, and it is designed to guide official decisions by police officers, prosecutors, and judges. Official decisions are often but not always guided by a prior written text; sometimes public officials make decisions without statutory or other written guidance. And official decisions are sometimes, but only sometimes, recorded in a new written text. Decisions by police officers are often unrecorded, or recorded in a document such as an arrest report that’s soon lost to history, whereas courts frequently announce and explain their decisions in written opinions that are preserved for much longer periods. This latter kind of text, the judicial opinion or “case,” makes up much of law school reading assignments. But cases are not the only written texts that are important to the practice of law, and judicial decisions are not the only decisions that are important to law. In criminal law (and many other fields), statutes are especially important legal texts. And in criminal law (and many other fields), decisions by executive branch officials are often determinative of legal outcomes. In this book, statutes and cases are the type of legal text that you’ll encounter most often, but you will also see examples of other legal texts such as indictments (a special document stating criminal charges) and arrest reports. We will consider how these various texts reflect and shape official decisions and actions.
Here, then, is one way in which criminal law is like other areas of law that you will encounter in law school: it is a distinctive human practice that involves the use of written texts to guide, constrain, or express official decisions and actions. It bears emphasis that the decisions reached in law are decisions made by human beings. Humans are rational creatures who can deliberate about moral values, or take into account empirical evidence, or be influenced by public opinion, or rely on “common sense” as they make legal decisions. But human rationality is bounded, or limited by various factors such as imperfect information and cognitive biases. Human law, unlike the laws of physics, thus reflects various characteristics of human decisionmaking that are also observable in other contexts, such as the influence of emotion and cognitive biases. Racial bias is a particularly acute concern in criminal law, and it will be addressed later in this chapter and at various other points throughout this book. Perhaps criminal law is even more shaped by emotion and cognitive bias than other fields of human law; we will explore that possibility. For now, the key point is that legal texts are designed to guide human decisionmaking, but the relevant text may not be the only factor that shapes an official decision.
What (beyond the possibility of unusual effects of bias and emotion) distinguishes criminal law from other fields of human law? Criminal law was once more commonly called “the law of crimes,” and the concept of a crime may help us identify what is distinctive about criminal law. In popular culture and lay parlance, the term crime is likely to bring to mind images of wrongful or harmful acts. It is tempting to think of criminal law as the law that regulates (by prohibiting) acts of violence or other inflictions of serious harm. Certainly many cultural depictions of crime encourage that view, equating crime with murder, rape, or other grave physical harms. But in legal terms, a crime is any act that has been designated as a crime by the appropriate legal actors. Many acts designated as crimes do not involve any physical harm, or even conduct that is widely viewed as harmful. Public intoxication, or “loitering,” or a failure to file required paperwork, are all acts designated as criminal, as you will see in the coming chapters. We will consider a wide array of acts designated as criminal and investigate whether we can identify one or more shared characteristics of those acts. Is there an extra-legal definition of “wrong” or “harm” that predicts which acts will be labeled as crimes?
Whether or not the acts designated as criminal are in fact wrongful or harmful in all cases, the designation of a person as “a criminal” brings significant negative consequences to that person in all or nearly all cases. Criminal law is often said to be distinctive in imposing unique burdens, such as loss of liberty through a jail or prison sentence. Even when a person convicted of a criminal offense avoids incarceration, a criminal conviction carries considerable stigma and often renders a person ineligible for various social benefits.
Indeed, the burdens of a criminal conviction are a key part of the distinction between criminal law and tort law. Tort law, which you are likely to study in your first year of law school, is similar to criminal law in that it imposes legal liability for conduct designated as wrongful. In fact, the modern English word “tort” comes from the Latin term torquere (to twist, or distort) and its past participle tortum (wrong or injustice). Many acts could be classified as both crimes and torts, such as intentional inflictions of physical injury. But tort law is different from criminal law in at least two key respects. First, the sanctions are different. Tort liability usually means having to pay monetary damages to the injured party, but it does not involve custodial detention or the stigma of a criminal conviction. To be sure, criminal punishment can take the form of a fine, or monetary restitution to a victim, so the fact that a person has to pay money for some wrongdoing does not itself distinguish crimes from torts. But criminal sanctions often involve not monetary payments (or, not only monetary payments) but physical detention, in a jail or prison. Additionally, there is a stigma associated with a criminal conviction that is not typically associated with being found liable for a tort. Thus, the severity and stigma of criminal sanctions may be one point of distinction from tort law. A second way in which tort law is different from criminal law is that the decision to pursue a tort claim is usually the choice of a private party, not a public official. Police and prosecutors decide whether a given individual will be investigated and charged with a crime, but the individual or private party who is harmed by tortious conduct decides whether to file a tort suit.
Because the burdens of a criminal conviction are seen as more severe than the burdens typically imposed by non-criminal laws, criminal law contains various structures designed to limit the imposition of criminal penalties. For example, criminal punishment is said to require a higher standard of proof than is required in many other areas of law – that’s the beyond a reasonable doubt standard that you’re likely to have heard invoked before. This is another way in which criminal law differs from tort law, and it may explain why some defendants are acquitted of criminal charges but found civilly liable for the same conduct in a tort suit. (O.J. Simpson is a famous example: he was acquitted of the murders of his ex-wife and her friend Ron Goldman, but Simpson was found liable for the deaths in a subsequent civil tort suit with a lower standard of proof.) In Chapter Two, Three, and Four, we will encounter several cases that address constitutional principles arguably designed to limit the imposition of criminal law’s distinctively severe penalties. As you read those cases, you will gain a better understanding of how the United States has developed its extensive system of criminal legal interventions, notwithstanding ostensible limits on the use of criminal sanctions.
Throughout this book, we will consider the ways that criminal law is, and is not, like other areas of law. We’ll ask this question with specific focus on the conduct that the law regulates, the burdens or penalties that the law imposes, and the ways that official legal decisions are made. The aim is to help you understand criminal law in context, but if these comparisons also help you understand other fields of law, so much the better!
In the remainder of this introductory chapter, and indeed in much of the rest of this book, we will consider three types of official decisions that are especially important to criminal law. For any individual person to be convicted of a crime, each of these three decisions is necessary. First, the criminalization decision is the choice to define some category of conduct as criminal. Today, this decision usually must be made by a legislature and expressed in a criminal statute, but we will see in this chapter that criminalization decisions have not always required legislative action or a written statute.
Criminal statutes (or other texts that define activity as criminal) are not self-enforcing. For example, the existence of a statute that criminalizes the possession of cocaine is not by itself enough to ensure that all persons who possess cocaine will be convicted of violating that statute. Accordingly, a second type of decision key to criminal law is the enforcement decision, or the decision by enforcement agents such as police and prosecutors to arrest or charge a given person. In practice, the enforcement decision is usually not just one decision but two decisions or more: the decision by a police officer to investigate and perhaps arrest a person; the decision by a prosecutor to charge a particular offense; and in many instances, later decisions by a prosecutor to add or drop charges as part of a plea bargaining process.
Plea bargaining is often (but not always) a precursor to the third key decision, the adjudication decision, in which a formal, and often final, decision is made to classify the defendant as guilty or not guilty. If a criminal case involves a jury trial, then it is the jury who makes the adjudication decision. Some criminal cases involve bench trials, in which a judge serves as the factfinder and decides whether to convict the defendant or not. But the vast majority of criminal convictions are based on guilty pleas rather than jury or bench trials. When a defendant pleads guilty, it is more difficult to identify the actor who makes the adjudication decision. It could be said that the defendant himself (or herself) makes the adjudication decision, since the defendant admits his own guilt instead of asking a jury or judge to determine guilt. But what would lead a defendant to do that? In a system that promises that every defendant will be presumed innocent until proven guilty, why do so many defendants plead guilty, disclaim their own innocence, and relieve prosecutors of their burden to prove guilt? We will explore these questions more in Chapter Four and throughout the book. It will turn out that criminalization decisions and enforcement decisions can create situations in which adjudication decisions all but disappear – choices about what to criminalize, and how to enforce those laws, can make a guilty plea rather than a trial the least terrible option for many a defendant. For now, it is important simply to note that the distinctive standard of proof mentioned above – proof beyond a reasonable doubt – does not actually get tested in most criminal cases. Prosecutors don’t have to “prove” anything if a defendant pleads guilty.
In a nutshell, then, criminal law is a human practice which involves three important types of decisions: criminalization, enforcement, and adjudication. Any of these decisions may be guided by, or recorded in, an official text, but texts will not always determine how the decisions are made. This book seeks to help you understand the practice of criminal law by helping you understand each of these three types of decision, and its relation to applicable texts. We will consider similar questions about each type of decision: Who makes it? Does the decision have to take a certain form (a statute, an indictment, a verdict) in order to be recognized as legally valid? What constraints or criteria apply to the decision, and how does each decision establish constraints or criteria for other decisionmakers? For example, consider the modern view that the decision to criminalize conduct must be expressed in a written statute. What constraints, if any, apply to a legislature’s decision to enact a new statute? Once a statute is enacted, how does it then guide or constrain the decisions of police, prosecutors, judges, or juries?
Our first case focuses most directly on the criminalization decision and which institution – court or legislature – should make that decision. But as you read, look also for references to the other two decisions, the enforcement decision and the conviction decision.
Is this act a crime?
COMMONWEALTH of Pennsylvania
v.
Michael MOCHAN, Appellant
Superior Court of Pennsylvania
110 A. 2d 788
Jan. 14, 1955
HIRT, Judge.
One indictment (Bill 230), before us in the present appeals, charged that the defendant on May 4, 1953 ‘devising, contriving and intending the morals and manners of the good citizens of this Commonwealth then and there being, to debauch and corrupt, and further devising and intending to harass, embarrass and villify divers citizens of this Commonwealth and particularly one Louise Zivkovich and the members of the family of her the said Louise Zivkovich * * * unlawfully, wickedly and maliciously did then and there on the said days and dates aforesaid, make numerous telephone calls to the dwelling house of the said Louise Zivkovich at all times of the day and night, in which said telephone calls and conversations resulting therefrom the said Michael Mochan did wickedly and maliciously refer to the said Louise Zivkovich as a lewd, immoral and lascivious woman of an indecent and lewd character, and other scurrilous, opprobrious, filthy, disgusting and indecent language and talk and did then and there use in said telephone calls and conversations resulting therefrom, not only with the said Louise Zivkovich as aforesaid but with other members of the family of the said Louise Zivkovich then and there residing and then and there answering said telephone calls aforesaid intending as aforesaid to blacken the character and reputation of the said Louise Zivkovich and to infer that the said Louise Zivkovich was a woman of ill repute and ill fame, and intending as aforesaid to harass, embarrass and villify the said Louise Zivkovich and other members of her household as aforesaid, to the great damage, injury and oppression of the said Louise Zivkovich and other good citizens of this Commonwealth to the evil example of all other in like case offending, and against the peace and dignity of the Commonwealth of Pennsylvania.’
A second indictment (Bill 231), in the same language, charged a like offense committed by defendant on another date. Defendant was tried before a judge without a jury and was convicted on both charges and was sentenced. He has appealed … on the ground advanced by him that the conduct charged in the indictments, concededly not a criminal offense in this State by any statute, does not constitute a misdemeanor at common law. In a number of States and especially in the common law State of Pennsylvania the common law of England, as to crimes, is in force except in so far as it has been abrogated by statute. The indictments in these cases by their language, clearly purported to charge a common law crime not included in our Penal Code or elsewhere in our statutory law.
It is established by the testimony that the defendant over a period of more than one month early in 1953, on numerous occasions and on the specific dates laid in the indictments, telephoned one Louise Zivkovich, a stranger to him and a married woman of the highest character and repute…. His language on these calls was obscene, lewd and filthy. He not only suggested intercourse with her but talked of sodomy as well, in the loathsome language of that criminal act, on a number of occasions. The calls were coming in from a four-party line. Through cooperation with the telephone company, the defendant was finally located and was arrested by the police at the telephone after the completion of his last call. After his arrest bearing upon the question of his identification as the one who made the calls, Mrs. Zivkovich recognized his voice, in a telephone conversation with him which was set up by the police.
It is of little importance that there is no precedent in our reports which decides the precise question here involved. The test is not whether precedents can be found in the books but whether the alleged crimes could have been prosecuted and the offenders punished under the common law. In Commonwealth v. Miller, 94 Pa.Super. 499, 507 (1928), the controlling principles are thus stated: ‘The common law is sufficiently broad to punish as a misdemeanor, although there may be no exact precedent, any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer, as in the case of acts which injuriously affect public morality, or obstruct, or pervert public justice, or the administration of government.’ Any act is indictable at common law which from its nature scandalously affects the morals or health of the community. 1 Wharton, Criminal Law, 12 Ed., § 23 (1932). … [I]n Commonwealth v. Glenny, 54 Pa. Dist. & C. R. 633 (1945), in a well considered opinion it was held that an indictment charging that the defendant took indecent liberties tending to debauch the morals of a male victim adequately set forth a common law offense. And as early as Updegraph v. Commonwealth, 11 Serg. & R. 394 (1824), it was held that Christianity is a part of the common law and maliciously to villify the Christian religion is an indictable offense.
To endeavor merely to persuade a married woman to commit adultery is not indictable. Smith v. Commonwealth, 54 Pa. 209 (1867). The present defendant’s criminal intent was evidenced by a number of overt acts beyond the mere oral solicitation of adultery. The vile and disgusting suggestions of sodomy alone and the otherwise persistent lewd, immoral and filthy language used by the defendant, take these cases out of the principle of the Smith case. Moreover potentially at least, defendant’s acts injuriously affected public morality. The operator or any one on defendant’s four-party telephone line could have listened in on the conversations, and at least two other persons in Mrs. Zivkovich’s household heard some of defendant’s immoral and obscene language over the telephone.
The name ‘Immoral Practices and Conduct’ was ascribed to the offense and was endorsed on the indictments by the District Attorney. Whether the endorsement appropriately or adequately names the offense is unimportant; the factual charges in the body of the indictments identify the offense as a common law misdemeanor and the testimony established the guilt of the defendant.
Judgments and sentences affirmed.
WOODSIDE, J., filed a dissenting opinion in which GUNTHER, J., joins.
Not unmindful of the reprehensible conduct of the appellant, I nevertheless cannot agree with the majority that what he did was a crime punishable under the laws of this Commonwealth.
The majority is declaring something to be a crime which was never before known to be a crime in this Commonwealth. They have done this by the application of such general principles as ‘it is a crime to do anything which injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer;’ and ‘whatever openly outrages decency and is injurious to public morals is a misdemeanor.’
Not only have they declared it to be a crime to do an act ‘injuriously affecting public morality,’ but they have declared it to be a crime to do any act which has a ‘potentially’ injurious effect on public morality.
Under the division of powers in our constitution it is for the legislature to determine what ‘injures or tends to injure the public.’
One of the most important functions of a legislature is to determine what acts ‘require the state to interfere and punish the wrongdoer.’ There is no reason for the legislature to enact any criminal laws if the courts delegate to themselves the power to apply such general principles as are here applied to whatever conduct may seem to the courts to be injurious to the public.
There is no doubt that the common law is a part of the law of this Commonwealth, and we punish many acts under the common law. But after nearly two hundred years of constitutional government in which the legislature and not the courts have been charged by the people with the responsibility of deciding which acts do and which do not injure the public to the extent which requires punishment, it seems to me we are making an unwarranted invasion of the legislative field when we arrogate that responsibility to ourselves by declaring now, for the first time, that certain acts are a crime.
When the legislature invades either the judicial or the executive fields, or the executive invades either the judicial or legislative fields, the courts stand ready to stop then. But in matters of this type there is nothing to prevent our invasion of the legislative field except our own self restraint. There are many examples of how carefully the courts, with admirable self restraint, have fenced themselves in so they would not romp through the fields of the other branches of government. This case is not such an example.
Until the legislature says that what the defendant did is a crime, I think the courts should not declare it to be such.
I would therefore reverse the lower court and discharge the appellant.
Notes and questions about Mochan
1. Notice the key decisions that were necessary in order for Michael Mochan to be convicted of a crime: first, the decision that “acts which injuriously affect public morality” are crimes; second, the decision that these particular phone calls constituted such injurious acts and warranted prosecution; and third, the decision that sufficient evidence exists to establish that Mochan was the person who made the calls. Which public officials made each of these decisions?
2. With Commonwealth v. Mochan, you have just read your first judicial opinion about criminal law. But do all the ideas and arguments here come from judges? Look closely at the first paragraph of the opinion, which is mostly a quotation. Whose language is the court quoting?
3. In light of the previous question, some tips for reading cases as you go forward: keep in mind that court opinions often quote other sources, or even without quoting, summarize arguments of the parties or other courts. Read carefully and consider each passage in context. This will help you determine when a judge is reporting arguments or decisions made by others, and when he or she is announcing or justifying the court’s own arguments and decision. And of course, be sure to take note of where a majority opinion ends and where a concurring or dissenting opinion begins.
4. An indictment (the type of document quoted in the first paragraph of this case) is a written document describing the defendant’s conduct and charging a specific offense. How does the prosecutor determine that Mochan’s actions are properly classified as criminal? Is there a name for the crime that Michael Mochan allegedly committed?
5. Identify Mochan’s “grounds for appeal,” or his specific argument that he should not have been convicted.
6. What is the difference between a “common law crime” and a statutory crime?
7. The majority opinion emphasizes that “to endeavor merely to persuade a married woman to commit adultery” is not a crime in Pennsylvania. What additional factors made Mochan’s conduct properly classified as criminal, in the majority’s view?
8. Once Louise Zivkovich reported obscene telephone calls to the police, were police obligated to investigate and respond? Once police investigated and identified Mochan as the person who made the calls, was a prosecutor obligated to bring charges? The court identifies as a misdemeanor “any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer” (emphasis added). The court later states that “potentially at least, defendant’s acts injuriously affected public morality.” Why is a potential effect on public morality sufficient for conviction? Does the court address the question whether the injury to public morality required the state to interfere here? Who determines whether state intervention is required?
9. Throughout this book, you can be confident that if a concurring or dissenting opinion is included in your assignment, there’s something important to be learned from that opinion. In this case, Judge Woodside’s dissenting opinion is important because his position is the majority view today: criminalization decisions (the classifications of acts as crimes) should be made by the legislative branch rather than the judicial branch. Why does Judge Woodside think that criminalization decisions should be made by a legislature rather than a court? (In Chapter Two, we will consider in more detail why Judge Woodside’s view became the prevalent view in the United States.)
10. The opinions in Mochan present two options: criminalization decisions can be made by the legislature, or criminalization decisions can be made by the judiciary. Are these the only two options? In the United States, government is usually organized into three branches, not just two – legislative, judicial, and executive. Police and prosecutors are part of the executive branch. Did executive branch officials play any role in the criminalization decision here? (In Chapter Three, we will consider in more detail the relationship between criminalization decisions, or the classification of a category of acts as criminal, and enforcement decisions, or the choice to treat a specific individual’s actions as falling within a larger category of acts defined as criminal.)
11. In your own view, which branch of government is best suited to decide that a category of actions should be classified as criminal and subject to punishment?
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“Substance,” “Procedure,” Text, and Decision
Many American criminal law casebooks, and indeed many criminal law scholars, divide criminal law into “substantive law” and “procedure.” On a standard account, “substantive criminal law” refers to the definitions of crimes or defenses, or general principles of criminal liability, stated in criminal statutes and interpreted or elaborated by judicial decisions. For example, the definition of murder, and the criteria for a valid insanity defense, are “substantive law.” The general definition of a misdemeanor in Mochan, “any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer,” would similarly be classified as “substantive law.” Substantive criminal law, on this view, is determined by the legislatures who enact statutes and the judges who interpret and apply these statutes, and one can find substantive law in certain key texts: statutes and judicial opinions.
The decisions of police and prosecutors are often classified as something different – procedure – and these decisions are often given little or no attention in a course on substantive law. This conceptual division between substance and procedure has led many a student to be surprised and puzzled in the criminal law classroom, because in most cultural depictions of criminal law, prosecutors and police are portrayed as central actors – as they should be. Beyond criminal law textbooks, enforcement decisions tend to gather a fair amount of interest and attention. One reason for the attention to enforcement is that a decision to enforce a criminal statute is often a decision to exercise the government’s power to use superior physical force: to arrest someone and take them into custody, to subject someone to a prison sentence. This dimension of criminal law, its connection to state violence, can be obscured from view if we think of criminal law only in terms of crime definitions and not in terms of the decisions that are made in light of those definitions. Very roughly, one could say that the traditional curricular approach identifies “criminal law” as residing in certain texts (again, statutes and written judicial opinions about statutes or general principles of liability). The decisions that individual officials make about those texts are not themselves part of “criminal law,” at least as the subject is traditionally taught.
This book proceeds from a more practical – and more complete – conception of law. Criminal law, like other types of human law, involves the interaction of texts and decisions. Though designed for the typical first-year criminal law course, this book does not limit itself to “substantive” law, at least in the usage described above. Statutory definitions of crimes, and general principles of criminal liability, are indeed discussed at length in this book. But these “substantive” laws are important insofar as they are invoked and applied by enforcement officials – police and prosecutors. Imagine a statute that criminalizes swimming in public while wearing improper attire, or one that criminalizes the sale of a videotape without an official rating displayed on the cover. If such statutes exist on paper but are never used to arrest or prosecute anyone, they don’t really represent the “criminal law” that students need to learn, and that this book seeks to explain. Moreover, if such statutes are used to arrest and prosecute people, but it is police and prosecutors who decide what counts as “improper attire” or an “official rating,” then the study of these laws should take these decisions by enforcement officials into account. This book is about criminal law as a human practice, which means that the decisions of enforcement officials are an important part of its focus. The approach taken here might be called an integrated approach, because it integrates written texts with the decisions that the texts are supposed to guide, and it integrates decisions by legislative, judicial, and executive actors.
One advantage of this integrated approach is that it better equips us to examine distinctive features of criminal law in the United States, including the exceptionally broad scale of criminal legal interventions and stark racial disparities among those targeted for policing and punishment. More empirical information about American criminal legal practices will be presented throughout the book, but here are three key features to keep in mind from the outset:
1. Imprisonment. For many years, the United States has had the highest incarceration rate in the world by a large margin, meaning it imprisons a greater share of its population than any other country. Again, a decision to use criminal law (rather than some other form of legal intervention) is often a decision to use superior physical force, and the physical constraints of prison are one very common form of force used by the state. The U.S. incarceration rate peaked at about 1000 people imprisoned per 100,000 residents, or about 1% of the population, around 2006-2008. Since then the incarceration rate has declined to about 700 people imprisoned per 100,000. (These numbers include persons detained in both prisons and jails. The Covid-19 pandemic has caused some fluctuation in these numbers, as many U.S. prisons released persons to reduce overcrowding, but jail populations have since expanded.) For comparison, the worldwide average incarceration rate is about 155 people imprisoned per 100,000. For more data on global incarceration rates, check out https://www.prisonpolicy.org/global/2018.html. The Vera Institute of Justice is another good source of data; for a report on pandemic-related fluctuations in prison and jail populations, see https://www.vera.org/publications/people-in-jail-and-prison-in-spring-2021.
2. Criminal interventions other than imprisonment. To count only the persons incarcerated in jail or prison may be to examine only the tip of a very big iceberg. The vast majority of people who are convicted of criminal offenses receive a non-custodial sentence, such as probation. And a still larger group of Americans are subjected to forcible police interventions such as stops, frisks, or even arrests but then not convicted, often because the police activity does not uncover evidence of any crime. It is much more difficult to gather data on these interventions than on prison sentences, but it does seem clear that the United States is an outlier not only in the number of people it imprisons but also in the number of people it convicts, arrests, or simply investigates through criminal law enforcement.
3. Racial disparities in both imprisonment and other criminal interventions. For prison sentences but also nearly every other type of criminal intervention, persons of color, especially Black people, are overrepresented in relation to their population. For example, Black people are more likely than white people to be stopped by the police, to be arrested, to be the target of police violence, to be detained pre-trial, to be sentenced to prison, to be sentenced to a life term, and so on. These patterns of disparity are discussed throughout the book, but you can see an overview and visual depictions of some of the data at https://www.prisonpolicy.org/blog/2020/07/27/disparities/.
One can’t really understand these phenomena simply by reading statutory definitions of crimes, or judicial opinions parsing statutory language. Indeed, a narrow focus on statutory definitions or judicial opinions is likely to be misleading. If one thinks of criminal law only in terms of crime definitions, then it may be tempting to conclude that racial disparities in punishment must be the product of racial disparities in criminalized behavior. In other words, one might assert that persons of color are convicted and punished at higher rates just because persons of color commit crimes more often. Though a handful of commentators do make this claim, this book aims to give you a more complete and accurate understanding of racial disparities in American criminal law. Substantial evidence (some of it linked above, more of it cited later in this book) indicates that a person of color is likely to be subject to more frequent and more severe criminal interventions than a similarly situated white person. Racial disparities in American criminal law are largely a product of public officials’ choices. And while statutory definitions enable enforcement choices, the statutes themselves often don’t explain those choices. The study of statutory definitions in isolation from enforcement practices is likely to produce an idealized and inaccurate picture of criminal law as a race-neutral, carefully constrained field. This book aims to help you understand the whole picture of criminal law, as sprawling and inegalitarian as that picture may be.
Finally, this book is also “integrated” in that it attempts to give you an overview of criminal law across the entire United States, even as it emphasizes that the definitions of crimes vary by specific jurisdiction. Each state enacts its own statutes or code (a criminal code is a collection of many different statutes). You could not hope to memorize the criminal code of even one state, much less many states. But your goal should not be the memorization of crime definitions. Criminalization, enforcement, and conviction decisions often follow similar patterns from one state to another, and this book will help you become familiar with those patterns. When you know the typical patterns and basic structures of criminal law, it becomes much easier to identify and apply the relevant law of a specific jurisdiction. For example, in Chapter Five we will study property offenses, including the offense of “burglary.” You will see that various states define burglary differently, but at the same time, there are commonalities across jurisdictions. You don’t need to memorize the definition of burglary from any specific state, but you do need to learn how to read and apply any burglary statute you encounter.
On the topic of jurisdictional variations, a quick note about the Multistate Bar Exam (MBE): this licensing exam for American lawyers is not based on any single state’s law, but it includes multiple choice questions about crime definitions – including burglary! The people who write the MBE have in mind a generic definition of burglary (and generic definitions of many other crimes), and for better or worse, becoming licensed as a lawyer usually requires learning the MBE’s generic definitions. But have no fear. You can think of the MBE as itself a fictitious jurisdiction, and this book aims to leave you as well prepared to operate in that imaginary jurisdiction as any actual U.S. state.
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The Power to Enforce Criminal Law
Like Commonwealth v. Mochan, the first case in this chapter, the next case comes from Pennsylvania. In that state, county sheriffs (and deputy sheriffs) are empowered to arrest drivers for traffic violations that amount to “a breach of the peace.” But Pennsylvania sheriffs do not have powers as extensive as police officers, who can in Pennsylvania and most states make an arrest for any criminal offense whether or not the offense involves “a breach of the peace” or even carries potential jail or prison time as a punishment. The legal classification of conduct as criminal gives most police officers – again, but not necessarily a Pennsylvania sheriff – power to stop, investigate, and possibly an arrest a person who is suspected of engaging in that conduct.
The federal constitution, especially its Fourth Amendment, has been interpreted and applied by courts to regulate many police decisions related to search and seizure. This book does not delve deeply into Fourth Amendment law, which you can study in an upper-level course. But it will be useful to know now that police authority to search or seize very often depends on whether the officer has adequate suspicion of criminal activity. When police search or seize without adequate suspicion of conduct that is actually criminal, any evidence they discover could be “suppressed,” or kept out of court.
In short, the classification of conduct as criminal is important not only because it subjects persons to punishment, but also because it subjects persons to policing. Very often, policing leads to the discovery of new evidence and a prosecution for conduct other than that which initially led the police to intervene, as you see below. Another way to put this point: the choice to criminalize conduct is also a choice to empower enforcement actions, such as investigations or arrests by police.
COMMONWEALTH of Pennsylvania
v.
Victor Lee COPENHAVER, Appellant
Supreme Court of Pennsylvania
229 A.3d 242
April 22, 2020
CHIEF JUSTICE SAYLOR.
In this appeal by allowance, we address whether a deputy sheriff may conduct a traffic stop on the basis of an expired registration sticker, on the theory that such a violation amounts to a breach of the peace.
In August 2015, a deputy sheriff conducted a vehicle stop of Appellant’s pickup truck. Upon approaching the truck, the deputy noticed an odor of alcohol and marijuana emanating from the passenger compartment. After administering field sobriety tests, he arrested Appellant for suspected driving under the influence of alcohol and controlled substances (“DUI”). Appellant was ultimately [convicted of DUI, possession of marijuana, and three Vehicle Code offenses].
Appellant challenged the deputy’s authority to conduct a traffic stop and sought suppression of all evidence obtained during the encounter…. The parties … agreed that:
The vehicle stop occurred as a result of the deputy … observing the tailgate to the pickup truck operated by … [Appellant] being in a down position. This caught [the deputy’s] attention. He further observed that the registration on the pickup truck was expired, and additionally, the registration number was identified as belonging to a vehicle other than the one on which it was attached[.]
Order of Stipulated Facts. In connection with the motion to suppress, Appellant argued that an expired registration tag does not give rise to a breach of the peace for purposes of a deputy’s residual common law authority to make arrests. [The fact that the truck’s tailgate was down … did not give rise to a Vehicle Code violation.]
[The trial court denied the suppression motion.]
After a bench trial, Appellant was convicted of DUI and other offenses, and he was sentenced to a term of partial confinement. Appellant lodged an appeal, arguing that his suppression motion should have been granted because operating a vehicle with an expired registration sticker does not by itself constitute a breach of the peace.
The Superior Court affirmed… [T]he Superior Court concluded that Appellant’s action in driving the pickup truck with an expired registration tag involved a breach of the peace, thus authorizing the deputy to conduct the traffic stop. Appellant sought further review in this Court….
The Commonwealth concedes that operating a vehicle with an expired registration sticker, in and of itself, may not comprise a breach of the peace. Because the expired registration belonged to a different vehicle, however, the Commonwealth argues (as it did before the Superior Court) that a reasonable possibility existed that the truck may have been stolen. Thus, the Commonwealth submits that Appellant’s Vehicle Code violations, when considered together, gave rise to a breach of the peace.
The question before this Court, however, is limited to whether operating a vehicle with an expired registration sticker, standing alone, amounts to a breach of the peace, and hence, that is the only question we will resolve. As “breach of the peace” was a criminal offense prior to the enactment of the Crimes Code, and as this Court has not yet had occasion to describe the contours of that concept, we begin by turning to the historical definition of the phrase to determine its present application.
As Appellant highlights, before the Crimes Code was enacted, Pennsylvania courts recognized that a breach of the peace “generally manifests [itself] by some outward, visible, audible or violent demonstration; not from quiet, orderly and peaceable acts secretly done.”
Consistent with this understanding, other jurisdictions have equated a breach of the peace with violent or dangerous activities or behavior. To take one example, Wisconsin’s Court of Appeals has held that driving under the influence of alcohol comprises a breach of the peace, as the dangerous nature of the offense threatens public safety. We find the thrust of these judicial and scholarly expressions persuasive. Accordingly, we now hold that – for purposes of a deputy sheriff’s common law authority to enforce the Vehicle Code – a breach of the peace arises from an act or circumstance that causes harm to persons or property, or has a reasonable potential to cause such harm, or otherwise to provoke violence, danger, or disruption to public order.
In our view, operating a vehicle with an expired registration sticker does not fit within that description, as it is not a violent or dangerous action, nor is it likely to lead to public disorder. Indeed, to the contrary, a vehicle’s registration tag expires with the passage of time and, as such, the expiration is passive in nature (although there may be intentionality or knowledge with regard to the decision to drive with an expired registration). Driving a vehicle with such a sticker, moreover, does not tend to incite violence, disorder, public or private insecurity, or the like. That being the case, we conclude that driving a vehicle with an expired registration does not entail a breach of the peace.
… Accordingly, the order of the Superior Court is vacated, and the matter is remanded to that court for further proceedings consistent with this opinion.
Justices Baer, Todd, Donohue, Dougherty and Mundy join the opinion.
Justice Wecht files a concurring and dissenting opinion.
JUSTICE WECHT:
I join the Majority’s straightforward and important holding “that driving a vehicle with an expired registration does not entail a breach of the peace.”
III
Since our Nation’s founding, this Commonwealth’s Constitutions have recognized the office of county sheriff. Curiously, however, while our [state] Constitution mentions the existence of the county sheriff, its text does not assign or specify any duties of that office. Twenty-six years ago, this Court confronted the question of whether a sheriff could, even in the absence of statutory authority, arrest an individual who has committed a breach of the peace. See Commonwealth v. Leet, 641 A.2d 299 (1994). [T]he Court, after reviewing the history of the sheriff at common law, simply declared that “[u]nless the sheriff’s common law power to make warrantless arrests for breaches of the peace committed in his presence has been abrogated, it is clear that a sheriff (and his deputies) may make arrests for motor vehicle violations which amount to breaches of the peace committed in their presence,” as long as the sheriff (or her deputies) “complete[d] the same type of training that is required of police officers throughout the Commonwealth.” And that was that.
Leet was flawed at the time it was decided, and the past twenty-six years have underscored these flaws…. It is time to overrule that precedent, and it is time for our General Assembly to define the duties of our Commonwealth’s sheriffs….
B
The Framers of our Commonwealth’s and our Nation’s Constitutions had a conception of law somewhat different from our own. For them, the common law simply existed, waiting to be revealed by the “brooding omnipresence in the sky.” S. Pac. Co. v. Jensen, 244 U.S. 205 (1917) (Holmes, J., dissenting). But our Framers’ beliefs about “the source of natural justice” made way over time for the view that “law in the sense in which courts speak of it today does not exist without some definite authority behind it,” Erie R.R. CO. v. Tompkins, 304 U.S. 64 (1938). Today’s conception of common law “is rooted in a positivist mindset utterly foreign to the American common-law tradition of the late 18th century.”
The brooding-omnipresence-versus-positivist-authority debate played out most prominently on the civil side of our common law jurisprudence, especially in the area of general common law and federal diversity jurisdiction. However, when our Commonwealth adopted English common law in 1777, we not only adopted the common law of torts and contracts and property, but the common law of crime as well. Into the twentieth century, we continued to adjudicate criminal common law. See Commonwealth v. Mochan, 110 A.2d 788 (1955). However, in 1972, in line with the modern positivist trend, our General Assembly codified the criminal laws of this Commonwealth. In doing so, the General Assembly decreed: “Common law crimes abolished.–No conduct constitutes a crime unless it is a crime under [Title 18 of Pennsylvania’s Consolidated Statutes] or another statute of this Commonwealth.” Act of 1972 (codified as 18 Pa.C.S. § 107(b)). Thus, the Commonwealth can no longer bring common law charges against defendants. Rather, Pennsylvania prosecutors must look to the “definite authority” of a statute duly enacted by our General Assembly.
C
In enacting the criminal code, the General Assembly elected not to codify the common law crime of “breach of the peace.” Additionally, neither the criminal code nor the Motor Vehicle Code (“MVC”) empowers sheriffs to enforce their provisions. This is not because the General Assembly is incapable of identifying in legislation which of our law enforcement personnel can enforce our statutes. Police officers have the [statutory] authority to make warrantless arrests for violations of the criminal code, and municipal police officers are specifically empowered to enforce that same code. State police officers and “[o]ther police officers” are empowered to make arrests for violations of the MVC.
Nor is the General Assembly incapable of defining the sheriff’s duties. On the contrary. By my count, the word “sheriff” appears in over 400 statutory provisions. Most importantly, “sheriffs … shall perform all those duties authorized or imposed on them by statute.” In line with this generic grant of authority, the General Assembly has empowered our Commonwealth’s sheriffs to perform all sorts of specific tasks. A sheriff can make an arrest for the violation of a protection from abuse order committed in the sheriff’s presence…. A sheriff can investigate disputes about the custody of animals, search for gunpowder in homes within the City of Philadelphia, serve process on islands between Pennsylvania and New Jersey, remove stocks of illegal fireworks, and issue licenses for dealers of precious metals [statutory citations omitted]. Even within the confines of the MVC, a sheriff can direct that a vehicle be impounded for nonpayment of fines, and conduct public sales for impounded vehicles [statutory citations omitted]. Also within the MVC, drivers are ordered to obey a sheriff who is directing traffic, and a sheriff’s vehicle is permitted to have flashing lights, And yet, with all of these specific provisions giving various duties to sheriffs, including within the MVC itself, never did the General Assembly decree that sheriffs should have the general authority to enforce the laws of our Commonwealth, criminal or motor vehicle in nature.[1]
As a matter of law, this lack of statutory authorization should have been the end of this debate. Then-Chief Justice Nix, the sole dissenter in Leet, thought it was. … Notwithstanding its unquestionable power to do so, the General Assembly has chosen not to alter our statutory framework with regard to sheriffs since Chief Justice Nix dissented in 1994. The dissent was convincing then, and it is convincing now. It should be the law.
D
… The Majority strives mightily to create a more precise meaning of breach of the peace, possibly in the forlorn hope that our lower courts will be able to adjudicate future cases without our recurrent intervention. Past experience of this Court suggests that this exercise will prove fruitless. The six cases preceding Copenhaver’s appeal have failed to provide authoritative guidance. Cf. Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (avoiding having to define breach of the peace, but writing that “[t]he term apparently meant very different things in different common-law contexts” and “[e]ven when used to describe common-law arrest authority, the term’s precise import is not altogether clear”). That we continually have felt bound to grant allocatur on this issue over the past quarter century is a testament to the impossibility of defining the term with precision. The General Assembly clearly is better-suited to such a task.
Our continued failure to squarely define breach of the peace does no favor to either sheriffs or average residents of (and visitors to) Pennsylvania. When a sheriff is traveling in an official vehicle and witnesses an individual disobeying some provision of the MVC, that sheriff will have to decide, on a moment’s notice, whether the observed action is a breach of the peace. While we rely upon our law enforcement officers to know the law and their duties in enforcing the law, requiring a sheriff to interpret when a particular action is a breach of a peace … seems beyond the pale, considering that even the judges and justices of this Commonwealth cannot come to an agreement.
Perhaps even more troubling is the lack of notice given to those Pennsylvanians who may violate the MVC. The average resident, who likely has less legal training than a law enforcement officer, will have no idea whether driving over an “unprotected hose of a fire department,” parking forty-nine feet from a railroad crossing, or crossing a highway in a golf cart at a forty-five degree angle [statutory citations omitted], constitutes a breach of the peace, for which a sheriff passing by could make an arrest….
A sheriff using these common law powers of arrest granted by this Court has enormous discretion. Because law enforcement resources are not unlimited, discretion is a necessary element in our criminal justice system. But as the law stands, sheriffs have discretion not only in determining who may be arrested and for what crimes they may be arrested, but also in determining (at least until court review following a suppression motion) whether sheriffs themselves have the authority to make the arrest in the first place. …
E
Leet was incorrect when it was decided, and it should be overruled. …
[W]hile I agree that an expired registration tag does not amount to a breach of the peace, I would find that sheriffs do not possess the authority to stop drivers who violate the Motor Vehicle Code, absent a directive from the General Assembly.
Check Your Understanding (1-3)
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Notes and questions on Copenhaver
1. Defining an act as criminal creates the legal authority to punish, in that legal definitions of crime specify some penalty that can be imposed on the person who engages in the given act. Defining an act as criminal can also create the legal authority to police, in that law enforcement officers will have powers to investigate and arrest persons suspected of the act defined as criminal. In the first case you read, Commonwealth v. Mochan, the dispute between the majority and dissent focused on which branch of government should have the power to decide which acts will be subject to punishment. (Again, the dissenting opinion in Mochan represents the view that eventually came to prevail in the United States, including Pennsylvania. See Part III-B of Justice Wecht’s opinion in this case.) Commonwealth v. Copenhaver presents a parallel dispute about the power to police rather than the power to punish. Which branch of government should have the power to decide when an act, such as driving with an expired vehicle registration, subjects a person to arrest by a county sheriff?
2. Where do police officers or other law enforcement agents get their powers? Is the power to arrest just out there, like a “brooding omnipresence in the sky”? Judge Wecht contrasts the brooding omnipresence view of law with a more modern “positivist” view, one that holds “law in the sense in which courts speak of it today does not exist without some definite authority behind it.” Judge Wecht would argue that a sheriff’s power to arrest must have “some definite authority behind it,” and more specifically, some definite authority granted by the legislature.
3. But consider again: is it really significant for the legislature to grant police arrest authority, or, thinking back to Mochan, for the legislature to designate which acts are subject to criminal punishment? As Judge Wecht notes, it’s fairly easy for the legislature to grant police broad powers to enforce any offense. It’s also fairly easy for legislatures to enact new criminal statutes. And many state legislatures have indeed created very broad powers to police and punish. American criminal law is not characterized by a lack of legislative involvement; it is instead characterized by very broad criminalization choices by legislatures.
4. The Copenhaver case is included here to encourage you to consider the ways in which criminalization decisions empower, and otherwise interact with, enforcement decisions. As you begin to think about enforcement decisions, keep in mind that a criminal conviction usually involves multiple different enforcement decisions – by police officers, by prosecutors, and perhaps by judges or other judicial employees. Enforcement decisions include decisions to investigate and arrest, typically made by police officers, but also a multitude of decisions about whether and how to charge the defendant, and which paths toward (or away from) conviction to pursue. The federal Bureau of Justice Statistics publishes a classic graphic that captures many key enforcement decisions, along with adjudication decisions, which you can view at https://bjs.ojp.gov/media/image/45506. This image is misleading in some respects, most prominently in its implication that a “crime” necessarily precedes any initiation of investigation and prosecution. In fact, many investigations begin with suspicion that criminal activity may have occurred, and then never produce any proof that a crime did in fact take place. Notwithstanding the limitations of the BJS flowchart, the sections labeled “Entry into the System” (on policing) and “Prosecution and Pretrial Services” (on prosecutorial choices) give you a reasonable overview of the many enforcement choices that can shape a defendant’s fate.
5. Victor Copenhaver, the defendant in Copenhaver, was ultimately convicted of what crime or crimes? Who made the adjudication decision in this case? That is, who found Copenhaver guilty? What evidence supported the finding of guilt?
6. As you probably already know, the prosecution is required to “prove” the defendant’s guilt (unless the defendant pleads guilty, as discussed above and in more detail in Chapter Four). In principle, the prosecution should meet its burden of proof by relying only on evidence that it has obtained legally. But there are many exceptions to that principle, and many debates about whether and when evidence that government actors have obtained illegally should be “suppressed,” or excluded from court at a trial. Whatever one’s judgment about the desirability of suppressing illegally seized evidence, it is clear that as the investigative powers of the police expand, the government’s ability to obtain evidence legally also expands. Thus expansions of the power to police are also expansions of the power to convict and punish—not because new police powers necessarily define more conduct as criminal, but because new police powers will help the state obtain what it needs to prove various types of conduct already defined as criminal.
7. Notice that the term “breach of the peace” is used in a couple of different ways. As Judge Wecht notes (Part III-C), there was once a common law crime called “breach of the peace,” which was not codified when Pennsylvania abolished common law crimes and enacted a criminal code. But even if there is no specific crime called “breach of the peace” in Pennsylvania today, the term remains important because of an earlier state case, the Leet decision from 1994. In Leet, the state supreme court decided that sheriffs had the authority to make warrantless arrests for offenses that constituted breaches of the peace. In this second usage, “breach of the peace” is not one specific crime but rather a broad category of offenses that could include drunk or reckless driving (to use the majority’s example) and maybe also driving over a fire hose or crossing a highway in a golf cart at a forty-five degree angle (to use Judge Wecht’s examples).
8. As noted by the majority, the prosecution (here, “the Commonwealth”) argued that the vehicle stop was justified not merely because the deputy sheriff suspected an expired registration, but also because the deputy suspected that the truck Copenhaver was driving could be stolen. The registration sticker was not simply expired; it had been issued to a different vehicle. The problem with this argument, as discussed by Justice Wecht in a portion of his opinion not included here, was that the deputy had testified that he did not learn that the registration was issued to a different vehicle until after he had stopped the truck. This seemingly small dispute raises broad questions about the scope of law enforcement authority, most of which we will not be able to tackle in this book. In general, police and other law enforcement officials are able to stop, arrest, or search persons when they have legally adequate suspicion. This means that long after a stop, arrest, or search has taken place, prosecutors and defense attorneys will often be arguing about what the police officer knew or suspected when he decided to exercise his investigative authority. Again, in this particular case, the deputy had testified that he did not know the registration sticker didn’t match the truck until after he made the stop. But the prosecution focused on the stipulated facts, rather than the deputy’s testimony, and argued that the stipulated facts allowed a conclusion that the deputy had in fact been aware of the mismatched sticker and thus could have suspected vehicle theft. All of this is important to this case, because the state courts would almost certainly find vehicle theft to be a “breach of the peace,” even if a mere expired registration is not a breach of the peace.
9. Also on the term “breach of the peace,” notice this possible contradiction between the majority and Judge Wecht: The majority claims that the court “has not yet had occasion to describe the contours” of the concept of a breach of the peace. But Judge Wecht points out that between Leet in 1994 and Copenhaver in 2020, the state supreme court decided six cases concerning the scope of sheriffs’ authority to arrest for “breaches of the peace.” Let this small, seemingly inconsequential divergence alert you to an important feature of all judicial opinions: they are expressions of human decisions, and they are usually carefully crafted to defend a specific outcome. Judges often have some leeway to choose which legal questions to address, which facts to include in their opinions, and which authorities or precedents to invoke (or ignore). One advantage of a case with multiple opinions is that you may get a slightly fuller picture of the background facts or applicable precedents.
10. It is important to understand the role that judicial opinions play in the field of criminal law, and the role they play in a criminal law course and in this book. As you know now after reading Commonwealth v. Mochan and the accompanying notes, today criminal law is a statutory field. For a type of conduct to be classified as criminal, a legislature needs to enact a statute defining the conduct as a crime. Judicial opinions are not the primary source of crime definitions. But as we will see in the next few chapters, statutes often leave many questions open for interpretation, and judges often help determine the scope of criminal law by adopting one interpretation or another. Still, the fact that crimes are typically defined by statute means that judicial opinions play a somewhat different role in this field, and in this book, than they do in some other areas of law. We do not read cases simply to identify their holdings. We do not attempt to synthesize an overarching rule from an array of cases on a related topic. Instead, we read cases primarily as case studies: each case in this book is selected to illustrate several important aspects of criminal law in practice. The notes that follow each case will help you identify various ways in which a particular case demonstrates something important about criminal law.
11. For example, one could say that the holding of Commonwealth v. Copenhaver is that in Pennsylvania, the offense of driving with an expired vehicle registration sticker is not a “breach of the peace” that gives a county sheriff authority to stop the vehicle. But that is hardly the most important lesson that you should learn from this case. Instead, the case is included here for reasons detailed in the notes above. Most importantly, you should understand that enforcement action is the critical link between a criminalization decision and an ultimate finding of guilt. A criminalization decision—the choice to classify a type of conduct as criminal—will produce enforcement powers, and those enforcement powers must be exercised to then bring a particular defendant to court for an adjudication decision. Justice Wecht’s separate opinion also makes Copenhaver a good case to prompt reflection about different types of law and different theories of law. Is law, including the law that empowers police, a “brooding omnipresence in the sky” that exists independently of legislative action? Should we think of law as only the formal pronouncements of legislatures? Should we view judicial decisions as something other than law-making? The brooding omnipresence view is one that may overly obscure the role of human beings and their specific decisions, treating law as an abstraction that exists independently of human decisionmakers. Copenhaver is here to raise these important questions as you begin your study of criminal law. Beyond Copenhaver and throughout this book, think of each case as a case study, and use the notes after each case to help you identify the various lessons to be drawn from each case.
1. In contrast to Pennsylvania, where sheriffs rely for their general arrest power only upon common law authority developed and pronounced by this Court, other states specifically empower their sheriffs through statute to make arrests, including for breaches of the peace… I can imagine nothing disabling our own General Assembly from passing similar laws if it chooses to do so. [Footnote by Justice Wecht.] | textbooks/biz/Criminal_Law/Criminal_Law%3A_An_Integrated_Approach_(Ristroph)/1.01%3A_Introduction_to_American_Criminal_Law.txt |
Introduction
In this chapter, criminalization refers to the classification of a type of conduct as criminal. To criminalize conduct means that persons who engage in that conduct may become liable for criminal sanctions. But criminalization itself does not guarantee that all persons who engage in the conduct will actually be punished, as will become more clear in the next two chapters on enforcement and adjudication. This chapter raises four questions about criminalization.
• Who? Which public officials or government institutions have the power and authority to classify conduct as criminal?
• Why? When public officials designate a type of conduct as criminal, why do they make that choice?
• How, or, in what form? When a public authority designates conduct as criminal, what form does that designation take? Are there necessary components that must be included in the definition of a crime?
• With what limits? Are there constraints on the power to declare conduct to be criminal?
For any of these questions, there may be a divergence between a purely descriptive answer and a normative answer. For example, one might think that, as a normative matter, all criminalization decisions should be made by the legislature and expressed in a clearly worded statute. And yet one might discover that in practice, vaguely worded statutes give courts or law enforcement officials the power to decide what kinds of conduct will be treated as criminal. This chapter seeks both to provide accurate descriptions of how criminalization decisions are made and to prompt reflection on normative questions about how criminalization decisions should be made.
One important question may seem to be missing from the above list: what types of conduct are, or have been, criminalized? Put simply, which acts are crimes? A catalogue of all crimes would be far too long for one book, let alone one chapter. But this book does aim to give you an overview of the types of conduct that have been defined as criminal. You will get some of this overview in Part B of this chapter, which addresses the reasons that public officials choose to criminalize. The range of different types of acts that have been designated as criminal may provide some clues to the reasons underlying criminalization choices. In addition, the final section of this chapter identifies some narrow areas in which the U.S. Constitution might prohibit criminalization of certain types of conduct. Most broadly, the book as a whole, including Unit Two with its focus on specific offenses, attempts to give you a sense of criminalization patterns in American jurisdictions.
An example may be useful to clarify the distinction between criminalization, discussed in this chapter, and enforcement and adjudication, discussed in the following two chapters. As you are no doubt aware, American states and the federal government have long criminalized the possession and distribution of many substances deemed dangerous. Some jurisdictions have recently decriminalized marijuana, which means that persons who possess or sell marijuana according to state guidelines are no longer subject to criminal punishment for that conduct. But even in a jurisdiction that continues to criminalize marijuana possession, the mere fact that a person possesses marijuana is not, by itself, sufficient to ensure that the person will be convicted and punished. For those things to happen, the person needs to be subject to enforcement – such as a police officer’s discovery of the marijuana, and a prosecutor’s choice to press charges – and adjudication – a formal determination of guilt. Criminalization is the first key decision that leads to punishment, but it is only the first.
Who defines crimes? Common law to codification
In early English common law, courts were primarily responsible for criminalization. Criminalization decisions were expressed in judicial opinions which identified certain kinds of acts as eligible for criminal liability. But from a fairly early date, courts shared the authority to criminalize with legislatures, who could enact statutes defining types of conduct as criminal. By 1765, the English Parliament had created at least 160 statutory felonies (each punishable by death). William Blackstone, 4 Commentaries on the Laws of England 18 (1765). After the American colonies declared their independence and began to establish their own criminal legal systems, they imported many English common law definitions of crimes, but they also began enacting new criminal statutes. And even as American state courts applied and interpreted English common law precedent, they also altered those precedents or designated new categories of activity as criminal, thus developing an American common law of crime. Thus, for much of American history, an act could be classified as criminal in any of three circumstances: 1) because English courts had criminalized it; 2) because American courts had criminalized it; or 3) because American legislatures had criminalized it.
But the notion that courts could declare conduct to be criminal was controversial in the young United States, and throughout the nineteenth century there were calls to eliminate this judicial power and codify all of criminal law – that is, to permit legislatures and only legislatures to define conduct as criminal. In 1812, the U.S. Supreme Court decided that federal courts lacked the power to define common law crimes; only Congress, the federal legislature, could designate conduct as a federal crime. United States v. Hudson& Goodwin (1812). Hudson& Goodwin does not directly affect the power of state courts to designate conduct as criminal under state law, but most U.S. states did in fact eventually limit or abolish the power of state courts to declare conduct to be criminal. Recall Commonwealth v. Mochan from the previous chapter, in which the majority continued to endorse common law crimes and the dissent urges exclusive legislative authority to criminalize. Even when decided in 1955, Mochan was an outlier. As you read in Commonwealth v. Copenhaver at the end of Chapter One, Pennsylvania eventually joined most other American states in abolishing common law crimes.
As a general matter, criminalization is now a legislative decision in the United States. That is, to prosecute a person in the U.S. today, officials almost always do need a statute, which is an official legislative statement defining conduct as criminal. Criminal law is a statutory field in this sense: it would be very unusual to see today a prosecution like the one in Mochan, where prosecutors did not cite any specific statute at all. Statutes, collected in criminal codes, are a central part of criminal law, and this chapter will explore several issues related to codes and statutes. But the prominence of statutes does not mean that “common law” principles or terms are now unimportant, or that judges have no power to shape the definition of crimes. As you will see, many criminal statutes use common law terms or definitions, and judges often invoke the common law in interpreting statutes. Moreover, when we turn our attention from the definitions of offenses to the scope of affirmative defenses, such as self-defense or necessity, we will see that common law terms and reasoning continues to play a more prominent role in that arena.
Between the legislature and the judiciary, who should have the power to define conduct as criminal? You may wish to glance back at Judge Woodside’s dissent in Mochan for some arguments for legislative primacy. Two standard arguments focus on democracy and notice. The democracy argument holds that a legislature is the best representative of the people, and criminalization choices should reflect the will of the people. The notice argument focuses on the form of criminalization, holding that a statute gives individuals advance notification that certain acts will be liable for punishment, whereas judicial decisions typically involve an actual defendant who has already been charged, and thus may not provide adequate notice to that particular defendant. Can you think of other reasons why either the judiciary or the legislature may be better suited to make criminalization decisions?
Are legislatures and courts likely to make different kinds of criminalization choices? In particular, is one institution more likely to classify conduct as criminal than the other? Some scholars have suggested that the threshold for criminalization may be lower when legislatures, rather than judges, define what is criminal. It does appear to be the case that legislatures enact new crimes more readily than do the handful of courts that retain the authority to declare common law crimes. And the greater legislative readiness to criminalize appears to have operated even before judicial crime definition fell into disfavor. As noted above, William Blackstone observed – and lamented – the proliferation of statutory felonies in England back in 1765! For further comparison of judicial crime-creation to legislative crime-creation in the United States, see Carissa Byrne Hessick, The Myth of Common Law Crimes, 105 Va. L. Rev. 965 (2019); Dru Stevenson, Costs of Codification, 2014 U. Ill. L. Rev. 1129.
Whatever one’s normative views as to who should make criminalization decisions, it is important to understand the existing state of American law: legislatures decide what conduct is criminal, at least as an initial matter. (In the next chapter we will note some ways that the executive branch can participate in or influence criminalization decisions, and in Chapter Four, we consider ways in which courts make criminalization decisions through their interpretation and application of statutes.) Although criminalization remains a choice to be made most often by the legislature, there is no single legislature that makes all of American criminal law. Congress is our national legislature and its criminal statutes – federal criminal laws – do apply across the nation. The first case in this chapter, Morissettev. United States, involves a federal criminal statute that was used to prosecute a man accused of taking federal property in Michigan. But as you will learn when you study constitutional law, Congressional power is limited in various respects. Most criminal law comes from state legislatures, not Congress, which means that the definitions of crimes vary from state to state. Most states have a crime called “murder,” but the precise definition of murder can vary from state to state. Thus, whether a particular killing constitutes a murder can depend on where the killing takes place. This point bears emphasis, and repetition: jurisdiction matters! Always pay attention to where potentially criminal activity takes place, and consider the relevant laws of that jurisdiction. (Luckily, as noted in the first chapter, you do not need to memorize the various laws of every jurisdiction to do well in a criminal law course, or to do well as a practicing lawyer. But you do need to know that jurisdiction matters, and you need to be able to understand and apply the relevant statutes of a given jurisdiction.)
One particular collection of criminal statutes has traditionally loomed large in law school teaching. In the 1950s, a group of scholars and jurists developed a set of criminal statutes called the Model Penal Code (MPC). The American Law Institute, the group that drafted the MPC, is not a government entity and has no official authority to make binding law. Instead, the Institute sought to create a model or blueprint that would inspire actual legislatures to revise their own criminal codes. The drafters of the MPC sought greater consistency and rationality in criminal law. They saw some common law principles as outdated or misguided, and thus certain aspects of the MPC deliberately depart from common law traditions. After the MPC was published in 1962, some state legislatures did enact statutes that follow specific parts of the MPC, though no state adopted the entire model code. Certain provisions of the MPC have been very influential and widely copied in actual legislation. But as a code, or a complete set of statutes, the MPC is probably more widely embraced by law professors, who often give it extensive attention in a criminal law course, than by legislatures. The MPC is also influential among judges, who sometimes refer to the MPC when addressing questions not directly resolved by an existing statute. In short, some parts of the MPC have influenced actual codes and practices more than others. And even among states that have adopted parts of the MPC, significant local variation has developed as different state courts interpret MPC-inspired statutes differently. See Anders Walker, TheNew Common Law: Courts, Culture, and the Localization of the Model Penal Code, 62 Hastings L.J. 1633 (2011). Throughout this book, we will look at portions of the MPC when they are relevant, but it is important to keep in mind that the MPC is a blueprint or model rather than a binding legal document.
Among state criminal codes that borrow heavily from the MPC and those that do not, one common feature deserves emphasis: all criminal codes tend to be sprawling and ever-growing legal texts, with many statutes that seem to overlap – that is, multiple statutes that could plausibly be used to punish the same conduct. Even in states that have enacted many MPC-inspired statutes, the impact of those statutes may become less important as other statutes proliferate. Legislatures add new criminal statutes fairly often, and remove statutes somewhat more rarely. Somewhat counterintuitively, perhaps, some scholars have described the steady expansion of criminal codes as “degradation”: “[t]he main form of degradation is the proliferation of numerous new offenses that duplicate, but may be inconsistent with, prior existing offenses.” Paul H. Robinson & Michael T. Cahill, TheAccelerating Degradation of American Criminal Codes, 56 Hastings L.J. 633, 635 (2005). “American criminal codes have, since their initial codification, shown a tendency to become bigger and bigger. Bigger, however, is not always better. Indeed, it is sometimes worse….” Id. In later chapters, we will consider ways in which enforcement and adjudication decisions are affected by the proliferation of criminal statutes, especially the phenomenon of overlapping statutes. Most importantly, overlapping statutes increase enforcement discretion and make guilty pleas more likely, as we shall see.
Why enact criminal laws? Principles of criminalization
To classify conduct as criminal is to say that persons who engage in that conduct may be subject to criminal liability, which usually involves the imposition of some kind of burden, such as loss of physical liberty, monetary penalties, or other unpleasant consequences. Why do public officials choose to subject certain kinds of conduct to criminal sanctions? One simple answer focuses on criminal sanctions as deterrents: the government wants to discourage some type of conduct, and so it threatens unpleasant consequences for those who engage in that conduct. That answer isn’t complete, though. First, we may still wonder how a government chooses what conduct to discourage, and how it decides when to use criminal sanctions as opposed to other incentives or disincentives, such as civil penalties. And second, the deterrent effects of criminal sanctions are mixed. Sometimes the threat or imposition of criminal penalties does seem to discourage persons from engaging in the specified conduct, and sometimes it doesn’t. The continued (and ever-growing) enactment of criminal statutes in the face of mixed deterrent effects raises the possibility that reasons other than a desire to deter may sometimes motivate criminalization choices.
If public officials criminalize conduct in order to be able to punish it, the rationales for criminalization are likely to coincide with rationales for punishment. In addition to deterrence, retribution (or “just deserts”), incapacitation, and rehabilitation are frequently identified as goals of punishment. These considerations do often enter discussions of criminalization, but again, notice that these goals do not themselves tell us which acts need to be deterred, retributed, incapacitated, or rehabilitated. And if it sounds strange to speak of incapacitating or rehabilitating acts rather than people, that should highlight an important difference between criminalization and punishment. Criminalization can target acts or conduct; the state can designate an act as a crime even before the act takes place, and even if the act never actually does take place. But punishment, the actual imposition of criminal sanctions, is something that is done to a person. Punishment may be imposed in response to an act, but it is imposed on the person who has been found to engage in that act. Toward the end of this chapter, we will examine further the ways in which criminal law targets acts, persons, or both.
Many philosophers have developed principles of criminalization to explain when it is appropriate to designate conduct as criminal. The philosophers’ principles aren’t binding law, of course, but they could provide insight into actual government decisions or serve as a normative guide for government actors. One possible principle of criminalization is a harm principle, which could hold that conduct should be criminalized if and only if the conduct causes harm to other people. (Of course, what constitutes harm, and how much harm must occur to warrant government intervention, are further issues to be decided. Recall again Mochan, in which “any act which directly injures or tends to injure the public to such an extent as to require the state to interfere” was said to be criminal, and a vulgar phone call was found to be sufficiently injurious, or harmful, to constitute a crime.) Some theorists would distinguish between harm and wrong, and would argue that criminal sanctions should be imposed on wrongful conduct even if wrongs do not always cause harm. (Again, what constitutes wrongful conduct, and when a wrong warrants criminal intervention, must also be determined. As noted in Chapter One, tort law is also purportedly concerned with wrongful conduct. When should a state choose criminal sanctions rather than, or in addition to, tort sanctions?)
The concepts of harm and wrong may be too abstract to give concrete guidance to criminalization choices. If we look at the actual types of conduct that have been designated as criminal in many jurisdictions, we see that inflictions of physical injury to other persons (killing, in the most extreme, but also nondeadly assaults), taking property in violation of existing ownership rules, activities considered immoral, and activities viewed as unnecessarily dangerous are common categories of criminal offenses. But this list is only a brief beginning. Legislatures often attach criminal sanctions to violations of seemingly mundane public regulations. One much-cited example is the federal statute that criminalizes the misuse of Smokey the Bear’s image. More obscurely, an early Hawaii statute designated the practice of photography without a license as a misdemeanor offense. See Territory v. Kraft, 33 Haw. 397 (1935). (Fritz Kraft photographed President Franklin Roosevelt during the president’s visit to Hawaii, and then sold prints of the image, thus triggering a misdemeanor prosecution. The Supreme Court for the territory of Hawaii, which was not yet a state, eventually decided that the statute exceeded the government’s power.) Morissettev. United States, discussed below, discusses a category of regulatory offenses known as “public welfare” offenses. In recent years some legal theorists have urged the preservation of “public order” or “civil order” as a principle to guide criminalization choices, but it is not clear whether civil order is any more precise a guide than the concept of harm or wrong.
It is important to consider the reasons that public authorities choose to criminalize conduct, but do not be frustrated if you can’t identify one principle or even one set of principles that seems to explain all criminalization choices. The enactment of a new criminal statute is an action by elected politicians; you can decide for yourself whether politicians act always on principle. The criminal law scholar William Stuntz famously said that “American criminal law’s historical development has borne no relation to any plausible normative theory – unless ‘more’ counts as a normative theory.” Stuntz, ThePathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001). Whether you agree with Stuntz or not, thinking about the rationales for various criminal laws can help you understand how this area of law works. With that in mind, take a moment to think about criminalization choices in relation to enforcement choices.
The principles of criminalization identified above treat the question “why criminalize” as essentially equivalent to the question, “why punish?” But designating conduct as criminal does not mean that all who engage in that conduct will automatically be punished. When an act is designated as criminal, persons who engage in that act may become liable to punishment. But such a person is not actually punished until enforcers detect the violation, gather sufficient evidence of it, and prosecute and convict the person. Criminalization empowers enforcement actions, as discussed in relation to Copenhaver in Chapter One. Designating conduct as criminal empowers police and prosecutors to investigate, intervene, and initiate charges. Sometimes, there may be reasons to pursue these enforcement actions even if the government is not concerned about punishing the specific conduct that authorizes the investigation. For example, many investigations of traffic offenses are likely designed to gather information about other, unrelated offenses, such as drug crimes. The government may not see much value in imposing criminal punishment for traffic violations, but it may see great value in policing traffic violations. Thus, empowering law enforcement to intervene might itself be the aim of some criminalization decisions. We will return to this topic in the next chapter, which considers enforcement choices in more detail.
And finally, consider the possibility that some criminalization choices are primarily expressive. The government sometimes may wish to declare conduct criminal in order to communicate its disapproval of that conduct, even if it does not expect to impose punishment often. (Consider the criminalization of suicide, for example.)
Check Your Understanding (2-1)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Who, why, and how to define a crime
So far, we have discussed who makes criminalization decisions and why government may wish to criminalize. Both of these questions, along with a third – must the definition of a crime include certain ingredients, such as a requirement of wrongful intent? – arise in Morissettev. United States, presented below. Before you read the Supreme Court’s opinion, look at the text of the statute, excerpted below. Because criminalization is usually a legislative choice in contemporary law, most cases included this book involve the application of a specific criminal statute. Thus, most cases will be preceded by the relevant statutory text. Reading the statutory text will help you in a few ways. First, reading statutes and regulations is important to modern legal practice in any area of law, not just criminal law. Law does not reside wholly in judicial opinions, and you should become comfortable reading legal texts that were not written by courts. Second, you should become familiar with the standard form of a criminal statute. The statute below, like most criminal statutes, is not formulated as a command to individuals in the form, “don’t do X.” Instead, this statute, like most criminal statutes, describes a type of activity or conduct and specifies a punishment to be imposed on those who engage in that activity. The statute tells government officials – police, prosecutors, judges – what to do when someone engages in the criminalized conduct. In the next chapter, we will consider in more detail the way in which a statute operates to expand the power of enforcement officials. A third reason to look closely at the statute will become more clear by the end of this chapter: many criminal statutes can be divided into “elements,” or separate components that must be established in order to convict a defendant. You can use the statutes that precede cases in this book to practice identifying the separate elements of a given crime. (The next section of this chapter will give you more guidance about how to identify “elements.”) Finally, you may find it helpful to glance back at the statutory text as you read the judicial opinion. As you will see, arguments about the best way to interpret the statutory language are often the focus of appellate opinions.
With all that said, consider the following federal statute, first enacted by Congress in 1948:
18 U.S.C. § 641 . Public money, property, or records
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States … shall be fined under this title or imprisoned not more than ten years, or both….
Joseph Edward MORISSETTE
v.
UNITED STATES
Supreme Court of the United States
342 U.S. 246
Jan. 7, 1952
Justice JACKSON delivered the opinion of the Court.
This would have remained a profoundly insignificant case to all except its immediate parties had it not been so tried and submitted to the jury as to raise questions both fundamental and far-reaching in federal criminal law….
On a large tract of uninhabited and untilled land in a wooded and sparsely populated area of Michigan, the Government established a practice bombing range over which the Air Force dropped simulated bombs at ground targets. At various places about the range signs read ‘Danger—Keep Out—Bombing Range.’ Nevertheless, the range was known as good deer country and was extensively hunted. Spent bomb casings were cleared from the targets and thrown into piles ‘so that they will be out of the way.’ They were … dumped in heaps, some of which had been accumulating for four years or upwards, were exposed to the weather and rusting away.
Morissette, in December of 1948, went hunting in this area but did not get a deer. He thought to meet expenses of the trip by salvaging some of these casings. He loaded three tons of them on his truck and took them to a nearby farm, where they were flattened by driving a tractor over them. After expending this labor and trucking them to market in Flint, he realized \$84.
Morissette … is a fruit stand operator in summer and a trucker and scrap iron collector in winter. An honorably discharged veteran of World War II, he enjoys a good name among his neighbors and has had no blemish on his record more disreputable than a conviction for reckless driving.
The loading, crushing and transporting of these casings were all in broad daylight, in full view of passers-by, without the slightest effort at concealment. When an investigation was started, Morissette voluntarily, promptly and candidly told the whole story to the authorities, saying that he had no intention of stealing but thought the property was abandoned, unwanted and considered of no value to the Government. He was indicted, however, on the charge that he ‘did unlawfully, wilfully and knowingly steal and convert’ property of the United States of the value of \$84….
On his trial, Morissette, as he had at all times told investigating officers, testified that from appearances he believed the casings were cast-off and abandoned, that he did not intend to steal the property, and took it with no wrongful or criminal intent. The trial court, however, was unimpressed, and ruled: ‘(H)e took it because he thought it was abandoned and he knew he was on government property. * * * That is no defense. * * * I don’t think anybody can have the defense they thought the property was abandoned on another man’s piece of property.’
The Court of Appeals … affirmed the conviction…. Its construction of the statute is that it creates several separate and distinct offenses, one being knowing conversion of government property. The court ruled that this particular offense requires no element of criminal intent. This conclusion was thought to be required by the failure of Congress to express such a requisite and this Court’s decisions in United States v. Behrman (1922) and United States v. Balint (1922).
In those cases this Court did construe mere omission from a criminal enactment of any mention of criminal intent as dispensing with it. If they be deemed precedents for principles of construction generally applicable to federal penal statutes, they authorize this conviction. Indeed, such adoption of the literal reasoning announced in those cases would do this and more—it would sweep out of all federal crimes, except when expressly preserved, the ancient requirement of a culpable state of mind. We think … an effect has been ascribed to them more comprehensive than was contemplated and one inconsistent with our philosophy of criminal law.
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution….
Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil. [1]As the state codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation. Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law. The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as ‘felonious intent,’ ‘criminal intent,’ ‘malice aforethought,’ ‘guilty knowledge,’ ‘fraudulent intent,’ ‘wilfulness,’ ‘scienter,’ to denote guilty knowledge, or ‘mens rea,’ to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes.
However, the Balint and Behrman offenses belong to a category of another character, with very different antecedents and origins. The crimes there involved depend on no mental element but consist only of forbidden acts or omissions. [They represent] a century-old but accelerating tendency, discernible both here and in England, to call into existence new duties and crimes which disregard any ingredient of intent. The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare.
While many of these duties are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called ‘public welfare offenses.’ These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender’s reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime….
After the turn of the Century, a new use for crimes without intent appeared when New York enacted numerous and novel regulations of tenement houses, sanctioned by money penalties. Landlords contended that a guilty intent was essential to establish a violation [but New York courts disagreed].… [F]or diverse but reconcilable reasons, [other] state courts converged on the same result, discontinuing inquiry into intent in a limited class of offenses against such statutory regulations.
Before long, similar questions growing out of federal legislation reached this Court. Its judgments were in harmony with this consensus of state judicial opinion…. In overruling a contention that there can be no conviction on an indictment which makes no charge of criminal intent but alleges only making of a sale of a narcotic forbidden by law, Chief Justice Taft, wrote: “While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not in terms include it * * *, there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court.” Balint.
On the same day, the Court determined that an offense under the Narcotic Drug Act does not require intent, saying, “If the offense be a statutory one, and intent or knowledge is not made an element of it, the indictment need not charge such knowledge or intent.” Behrman.
[But] since no federal crime can exist except by force of statute, the reasoning of the Behrman opinion, if read literally, would work far-reaching changes in the composition of all federal crimes. Had such a result been contemplated, it could hardly have escaped mention….
…[R]ecently … the Court took occasion more explicitly to relate abandonment of the ingredient of intent, not merely with considerations of expediency in obtaining convictions, nor with the malum prohibitum classification of the crime, but with the peculiar nature and quality of the offense. We referred to ‘a now familiar type of legislation whereby penalties serve as effective means of regulation’, and continued, ‘such legislation dispenses with the conventional requirement for criminal conduct—awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.’ United States v. Dotterweich (1943).
Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. We attempt no closed definition, for the law on the subject is neither settled nor static. The conclusion reached in the Balint and Behrman cases has our approval and adherence for the circumstances to which it was there applied. A quite different question here is whether we will expand the doctrine of crimes without intent to include those charged here.
Stealing, larceny, and its variants and equivalents, were among the earliest offenses known to the law that existed before legislation; they are invasions of rights of property which stir a sense of insecurity in the whole community and arouse public demand for retribution, the penalty is high and, when a sufficient amount is involved, the infamy is that of a felony, which, says Maitland, is ‘* * * as bad a word as you can give to man or thing.’ State courts of last resort, on whom fall the heaviest burden of interpreting criminal law in this country, have consistently retained the requirement of intent in larceny-type offenses. If any state has deviated, the exception has neither been called to our attention nor disclosed by our research.
Congress, therefore, omitted any express prescription of criminal intent from the enactment before us in the light of an unbroken course of judicial decision in all constituent states of the Union holding intent inherent in this class of offense, even when not expressed in a statute. Congressional silence as to mental elements in an Act merely adopting into federal statutory law a concept of crime already so well defined in common law and statutory interpretation by the states may warrant quite contrary inferences than the same silence in creating an offense new to general law, for whose definition the courts have no guidance except the Act. Because the offenses before this Court in the Balint and Behrman cases were of this latter class, we cannot accept them as authority for eliminating intent from offenses incorporated from the common law…
The Government asks us by a feat of construction radically to change the weights and balances in the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common-law crimes on judicial initiative.
The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute. And where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.
We hold that mere omission from § 641 of any mention of intent will not be construed as eliminating that element from the crimes denounced.
II.
[Even if] criminal intent is retained in the offenses of embezzlement, stealing and purloining, as incorporated into this section, it is urged that Congress joined with those, as a new, separate and distinct offense, knowingly to convert government property, under circumstances which imply that it is an offense in which the mental element of intent is not necessary.
… Congress, by the language of this section, has been at pains to incriminate only ‘knowing’ conversions. But, at common law, there are unwitting acts which constitute conversions. In the civil tort, except for recovery of exemplary damages, the defendant’s knowledge, intent, motive, mistake, and good faith are generally irrelevant. If one takes property which turns out to belong to another, his innocent intent will not shield him from making restitution or indemnity, for his well-meaning may not be allowed to deprive another of his own.
Had the statute applied to conversions without qualification, it would have made crimes of all unwitting, inadvertent and unintended conversions. Knowledge, of course, is not identical with intent and may not have been the most apt words of limitation. But knowing conversion requires more than knowledge that defendant was taking the property into his possession. He must have had knowledge of the facts, though not necessarily the law, that made the taking a conversion. In the case before us, whether the mental element that Congress required be spoken of as knowledge or as intent, would not seem to alter its bearing on guilt. for it is not apparent how Morissette could have knowingly or intentionally converted property that he did not know could be converted, as would be the case if it was in fact abandoned or if he truly believed it to be abandoned and unwanted property.
… We find no grounds for inferring any affirmative instruction from Congress to eliminate intent from any offense with which this defendant was charged.
III.
As we read the record, this case was tried on the theory that even if criminal intent were essential its presence (a) should be decided by the court (b) as a presumption of law, apparently conclusive, (c) predicated upon the isolated act of taking rather than upon all of the circumstances. In each of these respects we believe the trial court was in error.
Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury…. It follows that the trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act…
We think presumptive intent has no place in this case. A conclusive presumption which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition…
Of course, the jury, considering Morissette’s awareness that these casings were on government property, his failure to seek any permission for their removal and his self-interest as a witness, might have disbelieved his profession of innocent intent and concluded that his assertion of a belief that the casings were abandoned was an afterthought. Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges. They might have concluded that the heaps of spent casings left in the hinterland to rust away presented an appearance of unwanted and abandoned junk, and that lack of any conscious deprivation of property or intentional injury was indicated by Morissette’s good character, the openness of the taking, crushing and transporting of the casings, and the candor with which it was all admitted. They might have refused to brand Morissette as a thief. Had they done so, that too would have been the end of the matter.
Reversed.
Notes and questions about Morissette
1. For Joseph Morissette to be convicted, a criminalization decision is necessary. Here, the relevant criminalization decision is the decision that whoever “knowingly converts” federal property is guilty of an offense, as stated in the applicable statute, 18 U.S.C. § 641. Who made this decision? In one respect, the obvious answer is Congress. But once Congress has decided that it is a crime to “knowingly convert” federal property, who then decides what it means to “knowingly convert” federal property? More specifically, who decides whether the offense of knowing conversion requires an intention to act wrongfully? Is it the prosecutor’s decision? The trial judge’s? Someone else?
2. Notice that the Court links the purposes of criminalization to the analysis of the definition of a particular crime. Because “public welfare” offenses were enacted for different purposes than traditional common law crimes, public welfare offenses need not always require proof of wrongful intent. What makes an offense into a public welfare offense? Why isn’t knowing conversion of government property a public welfare offense, in the Court’s view?
3. As with all appellate opinions, read carefully and remember that you are reading an opinion – a document designed to advocate one view of the law. The Court makes some broad claims about criminal law in general, such as, “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion.” Later, the Court acknowledges that these generalizations are not true of all crimes, and the Court focuses its attention on the particular statute at hand. Does Morissette establish that all crimes require wrongful intent? If not, what rules or principles does the case establish? (Try to answer these questions on your own, then read the notes below to see if you’re on the right track.)
4. Morissettev. United States is the first case in this book that focuses on the interpretation of a criminal statute, but it is hardly the last. (In Chapter One, Mochan involved a common law prosecution without an applicable criminal statute, and Copenhaver focused on the scope of the common law power of county sheriffs to make arrests.) The statute used to prosecute Joseph Morissette, 18 U.S.C. § 641, is included in your text just before the court’s opinion. This format will be used throughout the book. For each case, the relevant statutory text will be reproduced immediately before the judicial opinion. As explained above, reading and interpreting statutes is an important skill that you should practice often.
5. The Supreme Court’s statement of its own holding can be found at the end of Part I of the opinion: “We hold that mere omission from § 641 of any mention of intent will not be construed as eliminating that element from the crimes denounced.” It’s important to be able to identify the holdings of cases, as you’ve probably already learned. But this narrow holding, focused on this particular statute, is not the only lesson to be drawn from Morissette. Several broader aspects of this case merit emphasis. First, you should notice that the mere existence of a statute, like § 641, does not necessarily resolve all questions that arise about crime definitions. Very often, statutes require interpretation; someone has to decide what the words of the statute mean. Second, notice that the interpretive question here concerns mental states, or mens rea: what must the defendant be thinking in order to be guilty of this statutory offense? Mens rea is a concept very important to criminal law, as discussed further in the next note. Third, the Court suggests that while “strict liability,” or liability without proof of any specific mental state, is possible in criminal law, courts should not presume strict liability simply because a statute fails to state explicitly a mens rea requirement. Here, although the language of the statute does not mention intent, the Supreme Court concludes that conviction of the statutory offense does require proof of wrongful intent. And finally, notice that to answer the interpretive question about the mens rea requirement of § 641, the Court discusses the mens rea requirements of common law larceny and related offenses. This is one of the ways in which common law crime definitions or other common law doctrines remain important even in today’s world of statutes: when statutory text is susceptible to multiple interpretations or otherwise leaves important questions unresolved, courts often turn to common law to attempt to resolve the ambiguity.
6. “Mens rea” is typically translated as “guilty mind.” This term is often used to refer to the mental state that a defendant must have in order to be guilty of a crime. The Morissette Court identifies several other terms that have also been used to refer to required mental states: scienter, willfulness, malice aforethought, and others. Courts have defined these terms slightly differently in different jurisdictions and contexts, so we will study the meanings of these terms as they arise in particular cases and with regard to particular offenses. Perhaps of interest to linguistics or history buffs: “mens rea,” like its companion term “actus reus” (translated as “guilty act” and discussed below), is legal Latin, a term that gained its current meaning after Latin was no longer widely used as a spoken language. The principle that crime definitions “always” required wrongful intent may have first circulated in the eighteenth or nineteenth century. At that time (and before and after), there were many counterexamples of crimes without a wrongful intent requirement. See Guyora Binder, The Rhetoric of Motive and Intent, 6 Buff. Crim. L. Rev. 1, 16 (2002); Francis Bowes Sayre, MensRea, 45 Harv. L. Rev. 974 (1932). Today, however, mens rea requirements are very common in criminal law. As you will see, appellate courts frequently uphold a conviction, or reverse one, based on an assessment of the defendant’s mental state. Being able to analyze and make arguments about mens rea requirements is critical to success in a criminal law course or in the practice of criminal law. We’ll return to the subject of mens rea many times over the course of this book.
7. Recall again that each criminal conviction requires not only a criminalization decision, but also a decision to enforce the law against a particular defendant and a decision that the defendant is in fact guilty. From the lower court opinion in this case, we know this much about the enforcement decisions: Joseph Morissette left the federal land with a large pile of “bomb-shaped” pieces of metal in his truck, easily visible to any passerby. At some point after leaving the government land, Morissette was questioned by a police officer, and Morissette told the officer how and where he obtained the metal. The police officer alerted an FBI agent, who later contacted Morissette. Morissette responded promptly to the FBI’s inquiry and explained to them how he had obtained the metal. Which of these facts, or other facts in the Supreme Court’s opinion, seem most relevant to a prosecutor’s decision to pursue charges in this case? Would you have chosen to prosecute Morissette, given what you know about the case? Why or why not? In Chapter Three, we will consider in more detail how police and prosecutors decide to pursue specific prosecutions.
8. Part III of the Supreme Court’s opinion is most focused on the adjudication decision, and more specifically, on the question who should decide whether Morissette had the requisite wrongful intent when he took the bomb casings. You should notice the ways that criminalization, enforcement, and adjudication decisions interact with one another. In order to know whether the jury has to find wrongful intent, the Court must determine whether the criminalization of “knowing conversion” included a wrongful intent requirement. We’ll consider the statutory analysis of § 641 in more detail in the next section.
Intention, action, and beyond: the basic form of a crime definition
As you now know, modern criminalization decisions are legislative decisions in the first instance – Congress or a state legislature must enact a statute to define conduct as criminal. In this section, we’ll look at several examples of criminal statutes to become familiar with the usual form and components of a criminal statute. We can start with the same federal statute that was used to prosecute Morissette, 18 U.S.C. § 641. Here is the statutory text again:
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States … shall be fined under this title or imprisoned not more than ten years, or both….
Notice that this statute describes conduct and sets a penalty for persons who engage in that conduct. Notice also that the statute uses some terms that may themselves seem to name criminal activity – embezzle, steal, purloin – but it does not define those terms, or specify the differences among them. And notice that § 641 is susceptible to multiple interpretations, especially with regard to the question of what mental state the defendant must hold in order to complete the crime. Each of these aspects of § 641 is fairly typical of criminal statutes, as you will see as you read more statutes.
The standard path to a criminal conviction is a guilty plea, and most guilty pleas do not lead to an appeal. In most of those cases, there may be no dispute about the meaning of a statute. But within the small fraction of cases in which a defendant contests guilt and later pursues an appeal, it is fairly common to see questions of statutory interpretation arise. Again, for each judicial opinion in this book, the relevant statutory text is reprinted at the beginning of the case (and/or included in the court’s opinion). You should look at these statutes closely, both to help you understand the specific issues addressed in each judicial opinion and to become generally familiar with the format, structure, and terminology of criminal statutes.
Some basic terminology will be helpful as you read and analyze criminal statutes, and as you read courts’ analysis of these statutes. To become familiar with the terms, consider a simple theft statute:
Theft of property, Tennessee (T.C.A. § 39-14-103):
A person commits theft of property if, with intent to deprive the owner of property, the person knowingly obtains or exercises control over the property without the owner’s effective consent.
This statute, like most, can be divided into component parts, or “elements.” The elements of an offense are the separate facts that must be established – “proven” to a jury or more frequently, admitted by the defendant – in order to convict the defendant. Theft in Tennessee has three elements, according to the state courts:
1. The defendant obtained or exercised control over property;
2. The defendant did not have the owner’s effective consent; and
3. The defendant intended to deprive the owner of the property.
As it is phrased here, the first element focuses on the defendant’s actions or conduct – obtaining or exercising control over property. Courts and practitioners often use the terms “conduct element” or “actus reus” to describe the element(s) of a crime definition that refers to the defendant’s actions. Actus reus is usually translated as “guilty act.” Just as courts have considered whether crime definitions must always include mens rea or mental state elements, courts have considered whether actus reus is a required element of any crime definition. That question is examined further in the next section of this chapter.
For a moment, skip the second element of theft in Tennessee (lack of effective consent), and look at the third listed element: intent to deprive the owner of property. This is a mens rea element expressly stated in the statutory text. As you now know from Morissette, courts might find a required mens rea element even if one is not stated clearly in the statutory text. But the first place to look for mens rea, or any aspect of a crime definition, is the text of the statute itself.
But notice that there is a mens rea term in the statutory text that did not appear in the numbered list of elements: the defendant must “knowingly” obtain or exercise control over the property. A more precise list of the required elements of this theft statute would specify that obtaining or exercising control must be done knowingly. With precision, though, comes complexity. If the first fact that the prosecution must prove is that “the defendant knowingly obtained or exercised control over property,” this fact will combine a conduct element (obtaining or exercising control) with a mental state element (knowledge that one is obtaining or exercising control). (And with complexity come more questions: does the word “knowingly” modify only the verbs “obtains or exercises control”? Or does “knowingly” also modify “without the owner’s effective consent,” meaning that the defendant must be aware that the property owner has not consented in order to violate this statute? These are the kind of interpretive questions that often arise with regard to criminal statutes.)
Now go back to the middle element of the Tennessee statute, the requirement that the defendant did not have the owner’s effective consent. This element doesn’t refer directly to the defendant’s own mental state or the defendant’s conduct; it doesn’t tell us something about what the defendant must be thinking or doing in order for the crime to occur. Instead, this element describes another fact or circumstance that must exist in order for the crime to occur: the owner of the property must not have given consent for the defendant to take or control the property. This kind of element is sometimes called an “attendant circumstance” element.
In addition to mental state / mens rea, conduct / actus reus, and attendant circumstances, crime definitions also may refer to results or causation requirements. Imagine the same Tennessee theft statute, but with one more element:
1. The defendant obtained or exercised control over property;
2. The defendant did not have the owner’s effective consent;
3. The defendant intended to deprive the owner of the property; and
4. The owner suffered substantial financial loss.
This fourth element is a result element: it requires a showing that a certain result has taken place. As suggested by the term “result,” courts would generally interpret such an element to require not only proof that the specified event occurred – proof that the owner did suffer substantial financial loss – but also proof of causation – proof that the defendant’s conduct caused the owner’s loss. We will look more closely at result elements and causation requirements in Chapter Five.
Sometimes, identifying the elements of a crime will be as easy as reading the statute and separating the text into different clauses. But often, identifying the elements of a crime requires more work, and argument, than simply reading the statute. In some instances, the statute will use a label without defining it, and you’ll have to look beyond the statute to learn the elements of the offense. (What does it mean to embezzle, or purloin, under the statute used to prosecute Joseph Morissette?) In some instances, even simple and seemingly clear words will be susceptible to more than one interpretation. (In the Tennessee theft statute just discussed, which terms are modified by the word “knowingly”?) And sometimes courts will identify elements that are not clearly stated in the text of the statute, as the Supreme Court did in requiring proof of wrongful intent in Morissette. When statutory language is unclear or subject to multiple interpretations, part of a lawyer’s task is to argue for one interpretation or another.
Consider the federal theft statute applied in Morissette one more time to see how separating a statute into elements can help you ask more precise questions about what must be established to show that the crime has occurred. Again, we can think of elements of an offense as the separate facts that must be established – “proven” to a jury or more frequently, admitted by the defendant – in order to convict the defendant. At Joseph Morissette’s trial, the prosecution needed to prove the following elements:
1. Morissette did embezzle, steal, purloin, or knowingly convert
2. to his use or the use of another
3. a thing of value
4. belonging to the federal government.
The prosecution did not argue that Morissette had embezzled or purloined the metal casings, but did allege both stealing and conversion. The indictment – the formal document that charged Morissette with the offense – alleged:
That on or about the 2nd day of December, A.D. 1948, at Oscoda, Michigan, in the Eastern District of Michigan … Joseph Edward Morissette, did unlawfully, willfully and knowingly steal and convert to his own use about three tons of used bomb casings having a value of approximately \$84.00, and being the property of the United States of America, located at the bombing range of the Oscoda Army Air Base, in violation of Section 641, United States Code, Title 18.
Notice that, besides alleging stealing and conversion, the indictment did claim that Morissette acted with wrongful intent—“unlawfully, willfully and knowingly.” But an allegation in an indictment is not proof at trial. Did the prosecution “prove” the right mental state? Did the jury determine that Morissette had acted with wrongful intent? Statutory analysis often requires a precise determination of the mental state the defendant must have with respect to each separate element of the offense. In Parts II and III of its opinion, the Supreme Court tackled this more precise analysis. What, exactly, did Morissette need to be thinking in order to commit this crime? Did he need to intend to steal, meaning that he had to think that what he was doing was reasonably called “stealing” and therefore illegal? Or was it enough for Morissette to know that he was taking property, even if he did not know that he was doing anything illegal? Look closely at Part II.
Check Your Understanding (2-2)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Ultimately, the Supreme Court determined that because the jury had not been properly instructed on the need to find wrongful intent (in the sense of awareness that one is taking the property of another), the courts could not be confident that the jury did in fact find the necessary mental state, and so Morissette’s conviction was reversed.
Breaking a statute into elements helps analyze these questions, and others that may arise. For example, suppose that Morissette did intend to steal the bomb casings, in the sense that he assumed they belonged to someone but nevertheless decided to take them from their rightful owner and sell them for profit. But suppose also that Morissette did not know that he was on government property, and instead he thought he was stealing from a private landowner. Would he be guilty of a violation of 18 U.S.C. § 641? Does the requirement of wrongful intent apply only to the act of taking the property, or also to the attendant circumstance that the property belongs to the federal government?
Don’t be frustrated if you don’t know the answer to the previous question even after reading the statute, or even after reading the Court’s opinion in Morissette. Neither did prosecutors and defense attorneys, until a number of federal courts issued opinions on this particular question of statutory interpretation. The courts did not all agree initially; one federal circuit initially interpreted 18 U.S.C. § 641 to require proof that the defendant knew that the property in question belonged to the federal government. But this circuit later overruled its own earlier decisions and joined other federal courts in holding that the fact that the government owned the property was a “jurisdictional element” that did not have an associated mens rea requirement. See United States v. Speir, 564 F.2d 934, 937-938 (10th Cir. 1977), overruling Findley v. United States, 362 F.2d 921 (10th Cir. 1966) and United States v. Baltrunas, 416 F.2d 401 (10th Cir. 1969). Now, courts are “unanimous that a person may violate 18 U.S.C. § 641 … even though that person is ignorant of the government’s ownership of the converted property.” United States v. Sivils, 960 F.2d 587, 595 (6th Cir. 1992). The defendant does still need to know that the property belongs to someone other than the defendant, as the Court established in Morissette, but the defendant need not know that the owner is the federal government.
As this history of caselaw on § 641 illustrates, statutory language is often subject to different possible interpretations. Once courts have interpreted the language in a particular way, that interpretation is binding (unless later overruled). But before courts have weighed in on a particular question of statutory interpretation, the law may simply be ambiguous or uncertain. That’s not a reason to panic as a lawyer. Indeed, areas of legal ambiguity are the places where lawyers’ skills are especially important and valuable. When you read legal texts, try not to assume that the first meaning that comes to your mind is the only possible interpretation. Instead, get in the habit of asking yourself, is there another way to read this? A lawyer’s work often involves arguing in favor of one interpretation over another, and to do that well, you need to anticipate other interpretations and be prepared to critique them.
The Voluntary Act “Requirement”
Morissette states that mens rea, or some culpable mental state, is generally required as a component of a crime definition (though again, the Court acknowledges the existence of many exceptions). Is there a similar general requirement for an actus reus, or some culpable action, for criminal liability? Courts sometimes speak of a voluntary act requirement, as discussed below.
STATE
v.
IVAN ALVARADO
Court of Appeals of Arizona, Div. 1, Dept. C
200 P.3d 1037
December 26, 2008
HALL, Judge.
The offense of promoting prison contraband occurs when a person “knowingly takes contraband into a correctional facility or the grounds of such facility.” Ariz. Rev. Stat. (A.R.S.) § 13–2505 (2001). The trial court granted defendant’s post-verdict motion for a judgment of acquittal on the charge of promoting prison contraband, reasoning that defendant did not “voluntarily” take marijuana into the jail following his arrest because it was concealed on his person when he was arrested. The State appeals the trial court’s ruling….
We view the evidence at trial in the light most favorable to upholding the jury’s verdict. The evidence showed that a police officer, responding to a call reporting a possible family fight, felt what he believed to be a pipe in defendant’s coat pocket when he was patting him down for weapons. Defendant told the officer that it was his marijuana pipe and gave the officer permission to remove it…. As the officer was securing defendant in handcuffs, defendant volunteered that he had marijuana in another coat pocket. The officer retrieved a baggie of marijuana weighing 71 milligrams … and completed his pat down before placing defendant in the police car for transportation to the Yavapai County Jail.
Before entering the jail, the police officer asked defendant if he had any drugs or weapons on him, and warned him that he faced additional charges if he took drugs or weapons into the jail. Defendant responded, “No.” The police officer repeated the question and warning … and defendant again responded, “No.” After defendant was brought into the facility to commence the booking process, a detention officer also asked defendant if he had any weapons or drugs on him, and defendant “sort of murmured no.” The detention officer, however, searched defendant’s person and removed a container from one of defendant’s pockets, which, when opened, held 790 milligrams of marijuana. Defendant volunteered, “Oh, man, I worked hard for that chronic,” a slang term for marijuana.
The judge denied defendant’s request for a preliminary instruction that the crime of promoting prison contraband requires proof that “the defendant knowingly and voluntarily took contraband into a correctional facility,” but agreed to add a definition of “voluntary act” to the preliminary instructions. At the close of the State’s case, defendant moved for judgment of acquittal on the charge on the ground that the State had not met its burden “to prove [he] voluntarily brought contraband into the jail.” The judge denied the motion, finding the evidence sufficient to go to the jury “based on the evidence that it was on his person at the time he was booked into jail.” The judge allowed defendant to argue to the jury that no evidence was offered to show defendant engaged in a voluntary act, and instructed the jury that the State must prove that defendant had committed a voluntary act, again defining the term as “a bodily movement performed consciously and as a result of effort and determination.” The jury convicted defendant of promoting prison contraband, possession of marijuana, and possession of drug paraphernalia.
Defendant renewed his motion for judgment of acquittal after trial, relying in his reply on State v. Tippetts, 43 P.3d 455 (Or. Ct. App. 2002)…. The State timely appealed.… We review a trial court’s grant of a post-conviction judgment of acquittal for an abuse of discretion. In conducting our review, we view the facts in the light most favorable to upholding the jury’s verdict….
…. At issue in this appeal is A.R.S. § 13-201 (2001), which provides that “[t]he minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform a duty imposed by law which the person is physically capable of performing.” The legislature has defined “voluntary act” as “a bodily movement performed consciously and as a result of effort and determination.”
In Tippetts, [an] Oregon appellate court considered the appeal of a defendant who was convicted of introducing marijuana into the jail under similar circumstances. The marijuana was in defendant’s pants pocket when he was arrested. A jail officer asked the defendant if he had drugs or weapons on him before searching him and discovering the marijuana, to which the defendant apparently made no response… The Tippetts court [found that] “the contraband was introduced into the jail only because the police took defendant (and the contraband) there against his will.” … The court further explained that the requirement of a voluntary act dictated “that the mere fact that defendant voluntarily possessed the drugs before he was arrested is insufficient to hold him criminally liable for the later act of introducing the drugs into the jail.” The court also reasoned that the constitutional privilege against self-incrimination prevented “the state from forcing defendant to choose between admitting to possession of a controlled substance and being charged with introducing that substance into a correctional facility.”
In order for the “involuntary act” of entering the jail with drugs to supply the basis for a conviction of conveying drugs into the jail, the [Tippetts] court held, “the involuntary act must, at a minimum, be a reasonably foreseeable or likely consequence of the voluntary act on which the state seeks to base criminal liability” [and] “no reasonable juror could have found that the introduction of contraband into the jail was a reasonably foreseeable consequence of possessing it.” Rather, the court reasoned, under those facts, the police officer’s “act of arresting defendant and transporting him to the jail was an intervening cause that resulted in the marijuana’s being introduced into the jail.”
Courts outside this jurisdiction have split on whether entering a jail involuntarily with drugs in one’s possession can form the basis of a conviction for introducing contraband into the jail. Three jurisdictions have followed the reasoning outlined in Tippetts…. Courts in five jurisdictions, however, have diverged from or rejected the analysis of Tippetts, holding that no more than entry into jail knowing that one is carrying contraband is required by the plain terms of the governing statutes….
We decline to follow Tippetts and its progeny….
In State v. Lara (1995) our supreme court explained that the requirement that an act be “voluntary” is simply a codification of the common law requirement of actus reus, a requirement grounded in the principle that a person cannot be prosecuted for his thoughts alone, and that the voluntary act requirement does not modify the mensrea required for the offense. The court therefore concluded that expert testimony that the defendant suffered from a brain disorder that caused him to fly into a rage “as if by reflex” was insufficient to support a voluntary act instruction. The court stated that the statutory requirement that the conduct include “a bodily movement performed consciously and as a result of effort and determination” simply means that the defendant engage in “a determined conscious bodily movement, in contrast to a knee-jerk reflex driven by the autonomic nervous system.” [In interpreting the “voluntary act” requirement, the court characterized the evidence as showing that Lara was both conscious and “relentless in his effort and determination.”]
Defendant, however, would have us interpret the governing statutes to require that the State not only prove that defendant knew that he was taking marijuana into the jail but that he was entering the jail “voluntarily.” In making this request, defendant confuses the concept of a “voluntary act” with the requisite culpable mental state for the offense. Again, as explained in Lara: “ ‘[V]oluntary act’ means actus reus. On the other hand, ‘voluntary’ has also been used to describe behavior that might justify inferring a particular culpable mental state.” The evidence in this case is more than sufficient to demonstrate that defendant had the necessary mensrea of “knowingly” taking the marijuana into the jail, as evidenced by his statement, “Oh man, I worked hard for that chronic.” If we were to adopt defendant’s interpretation, the statute would only apply to non-inmates, such as employees or visitors, who “voluntarily” enter the jail while carrying drugs. The statute is not so limited and we decline, under the guise of interpretation, to modify the statute in a manner contrary to its plain wording.
Finally, the circumstance here that both the arresting officer and the detention officer informed defendant of the consequences of bringing contraband into the jail and gave him an opportunity to surrender any contraband beforehand highlight that defendant was performing a bodily movement “consciously and as a result of effort and determination” when he carried the contraband into the jail. That defendant chose not to disclose that he possessed an additional amount of marijuana on his person does not somehow absolve him of responsibility for his actions on the theory that providing him an opportunity to choose between admitting to possession of the marijuana and being charged with introducing that substance into the jail violates the self-incrimination clause of the Fifth Amendment. In this regard, we agree with the Court of Criminal Appeals of Tennessee: “…[A]fter being advised of the consequences of bringing drugs into the jail, the Appellant consciously chose to ignore the officers’ warnings…. Under these circumstances, the Appellant was the author of his own fate.” State v. Carr, 2008 WL 4368240 at 5.
Because the evidence in this case sufficiently demonstrated that defendant consciously, with effort and determination, engaged in the prohibited conduct of carrying marijuana into the Yavapai County Jail, the trial court erred in entering a judgment of acquittal. We therefore reverse the judgment of acquittal, direct the court to reinstate the jury’s verdict, and remand for further proceedings consistent with this Opinion.
Check Your Understanding (2-3)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Notes and questions about Alvarado
1. Two different Arizona statutes are important to this opinion. The first, § 13–2505, simply defines the offense of “promoting prison contraband,” one of the three offenses with which Alvarado was charged, and the only charge that he was challenging in this appeal. To challenge his conviction for promoting prison contraband, Alvarado relied on another Arizona statute, § 13-201, which offers a fairly standard statement of a voluntary act requirement. Arizona’s § 13-201 is similar in some respects to the Model Penal Code’s § 2.01, reprinted below.
(1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable.
(2) The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis or resulting from hypnotic suggestion;
(d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.
(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
(a) the omission is expressly made sufficient by the law defining the offense; or
(b) a duty to perform the omitted act is otherwise imposed by law.
(4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.
Recall that the Model Penal Code is a collection of statutes drafted and published by the American Law Institute. The MPC is not itself binding law, but many parts of it, including § 2.01, have inspired or influenced American legislators.
2. The term “voluntary” seems to refer to choices and mental states, which can produce confusion between a voluntary act requirement and mens rea analysis, as the Arizona court points out. But courts do distinguish between a “voluntary act requirement,” which purportedly applies to all criminal statutes regardless of whether they require the prosecution to prove specific details of the defendant’s mental state, and mens rea requirements, which vary by statute and may not appear in every single criminal statute. How does the Alvarado court attempt to distinguish between a voluntary act requirement and mens rea requirements?
3. In criminal law (and in other areas of law), it is often the case that a principle is widely endorsed if stated in general terms, and yet there exists substantial disagreement about how the principle applies to concrete cases. “Criminal liability requires a voluntary act” is one such principle. At least four U.S. jurisdictions have found a separate offense of contraband possession in jail is a violation of a voluntary act requirement if imposed on defendants like Alvarado, who are brought into jail against their will. But at least six other jurisdictions, including Arizona in the opinion you’ve just read, have found conviction of a contraband offense in these circumstances to be permissible even given a voluntary act requirement. In the discussion above of the federal “knowing conversion” statute, we saw that statutory language is often subject to different plausible interpretations. So too with a term such as “voluntary act” – different jurisdictions may interpret it differently. In the face of these different approaches, which “law” should you learn? Just what you see here: you should be aware of the widespread endorsement of the general principle that criminal liability requires a voluntary act, and you should also know that there exist varying interpretations of what that principle means in specific circumstances. Again, a lawyer’s role is often to argue for one interpretation over another. To begin to develop that skill, try to articulate the strongest argument you can for the position that Alvarado’s conviction violates the voluntary act requirement. Then, make the strongest argument you can for the position that his conviction does not violate the voluntary act requirement.
4. Does a voluntary act requirement mean that the defendant must consciously choose the specific actions described in the statutory language? Or could the requisite “voluntary act” have occurred prior to the conduct specified in the statute? Try to identify the specific voluntary act that makes Alvarado properly convicted, in the court’s view. If Alvarado “worked hard for that chronic” and then chose to put the drugs in his pocket at some point, could that choice serve as the necessary voluntary act? Or was it the failure to tell jail officials about the (additional) drugs that constituted the necessary voluntary act? Notice that MPC § 2.01 identifies conditions under which omissions, or failures to do something, can serve as the basis of criminal liability. We consider omission liability in more detail with Lambert v. California, the next case in this chapter, and then again in Chapter Six.
5. Is possession even an act? MPC § 2.01 addresses that question as well, and we will consider it in much more detail in Chapter Seven.
6. In light of the complexities and jurisdictional variations discussed above, is it an accurate description of existing law to say that criminal liability requires an act? One commentator has suggested that criminal law contains at best an “action presumption” rather than an “action requirement.” Antony Duff, Answering for Crime (2007). Another has argued that a better description would identify “a control requirement” rather than “an act requirement” for criminal liability. “Control … is more plausibly regarded as a condition of both moral and criminal responsibility. … The core idea behind the control requirement is that a person lacks responsibility for those states of affairs he is unable to prevent from taking place or obtaining.” Douglas Husak, Does Criminal Liability Require an Act?, in The Philosophy of Criminal Law: Selected Essays (2010).
7. The enforcement decision: when he was brought to jail, Ivan Alvarado was already facing marijuana and drug paraphernalia possession charges based on the pipe and baggie discovered at the location of his arrest. When officers discovered additional marijuana after Alvarado entered the jail, why did they bring a new and separate charge of “promoting prison contraband” instead of adding another count of marijuana possession? Chapter Three discusses the considerations, including applicable penalties, that can influence these types of charging decisions.
8. The Fifth Amendment of the U.S. Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” This provision, often called the privilege against self-incrimination, has been interpreted to restrict the ability of police or other state officials to interrogate suspects or otherwise demand answers to questions about criminal conduct. Alvarado argued that to punish him for failing to disclose the marijuana in his pocket would violate his Fifth Amendment rights. The Arizona state court rejected that argument without saying much about it, and the U.S. Supreme Court has not ruled directly on this issue. We won’t dive deeply into Fifth Amendment doctrine in this course, but keep in mind that just as there are numerous interpretations of which acts are “voluntary,” there are differing interpretations of what constitutes “compulsion.”
9. A Pennsylvania man returned home from one job around midnight and left for a second job around 6:30 am, staying awake through the intervening hours. On his way home from the second job, at about 7:00 pm, he fell asleep while driving, crossed into the wrong lane, and struck another vehicle. He was found guilty of the offense of careless driving. Was this conviction based on a voluntary act? What was the act? See Commonwealth v. Cathey, 435 Pa. Super. 162 (1994).
Criminalization and the U.S. Constitution
The discussion of State v. Alvarado above simply took for granted that Arizona could criminalize the possession of marijuana, and more specifically, the possession of marijuana in a jail or prison. But in recent years, many jurisdictions have reconsidered their earlier choices to criminalize marijuana possession. Is this choice, or any other choice to criminalize or decriminalize specific conduct, simply a matter of legislative prerogative? As a legislature makes criminal laws, is the legislature itself bound by any higher law – such as the U.S. Constitution? Various provisions of the Constitution identify individual rights or set limits to government power. Do any of these provisions constrain criminalization choices?
There are at least three ways in which the federal constitution might limit criminalization. One concerns not the what question (what conduct can be criminalized) but rather the how question: how must a criminalization decision be expressed? Must a criminal statute fit a specified form? The Supreme Court has interpreted the Fourteenth Amendment’s due process clause to require that criminal statutes are written in sufficiently clear language to give adequate notice of the prohibited conduct. This doctrine, often called the void-for-vagueness doctrine, is discussed in Chapter Three on enforcement decisions, since one of the doctrine’s rationales is that clear statutes are needed to guide enforcement choices.
A second type of constitutional limitation on criminalization does address the what question. Guarantees of specific individual rights have been interpreted to prevent certain protected acts from being designated as crimes. For example, the First Amendment’s protection of free speech prevents states from criminalizing some types of expressive conduct, like burning a flag. And under the Second Amendment as most recently interpreted, individuals possess a right to bear arms that prevents at least some acts of gun possession from being designated as criminal. This Second Amendment constraint on criminalization is discussed more in Chapter Seven. Finally, the path from Roe v. Wade (1973) to Dobbs v. Jackson Women’s Health Organization (2022) further illustrates the way that an individual right can limit criminalization — and the broad power to criminalize that legislatures enjoy in the absence of a recognized constitutional right. When the Supreme Court recognized a constitutional right to terminate a pregnancy in Roe, many state laws that criminalized abortion became unconstitutional. Those who wanted to re-criminalize abortion began a long and ultimately successful campaign to overrule Roe. Once the Court did overrule Roe with Dobbs in 2022, many states promptly enacted criminal prohibitions of abortion.
The remainder of this chapter addresses a third type of constitutional limitation on criminalization choices. In a few cases decided around the middle of the 20th century, the Supreme Court seemed to find a principle somewhat similar to a voluntary act requirement, or perhaps a control requirement, implicit in the federal constitution. Lambert v. California (1957), reprinted below, reversed a conviction for failing to register as a felon, noting that the state law imposed criminal liability without “any activity whatever” and even when the defendant did not know of an obligation to register. A few years later, Robinson v. California (1962) found that a state statute that made it a crime to “be addicted to narcotics” was a criminalization of disease that violated the Eighth Amendment. In the immediate aftermath of these decisions, some commentators thought the Supreme Court had established “a broad, constitutionally required voluntary-act norm.” William Stuntz, TheUneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L.J. 1, 68 (1997).
But Robinson was limited, though not explicitly overruled, by a divided Court in Powell v. Texas (1968), which allowed Texas to convict a chronic alcoholic of the crime of public intoxication. The Powell plurality emphasized that the crime required the voluntary “conduct” of a public appearance, and a fifth Justice suggested that the government would not be able to apply the statute to a homeless alcoholic who had no opportunity to avoid public intoxication. Powell did not explicitly reject the idea that a voluntary act, or voluntary conduct, was a constitutionally necessary component of criminal liability. But it treated “appearance in public” as an “act,” or conduct, that may be punished without violating the constitution.
Supreme Court decisions, like criminal statutes, constitutional provisions, and other legal texts, are susceptible to varying interpretations. (Or, to put it in the terms used in Chapter One, a legal text does not always influence subsequent legal decisions in precisely the ways that the text’s authors might hope.) To determine whether, or how much, the Constitution constrains criminalization choices, it is important to be aware of the Court’s opinions and also the ways these opinions have been interpreted. The remainder of this chapter is designed to help you see the interaction between Supreme Court opinions and decisions by lower courts, including state courts. Below, you will find the text of Lambert v. California followed by some excerpts of recent cases that interpret and apply Lambert. After that, instead of presenting Robinson and Powell independently, this section presents a state court opinion that summarizes and applies those two Supreme Court cases.
[The relevant statutory text for Lambert is omitted here, since it is reprinted in the first few paragraphs of the Supreme Court’s opinion below.]
Virginia LAMBERT, Appellant
v.
CALIFORNIA
Supreme Court of the United States
355 U.S. 225
Decided Dec. 16, 1957
Mr. Justice DOUGLAS delivered the opinion of the Court.
Section 52.38(a) of the Los Angeles Municipal Code defines ‘convicted person’ as follows:
‘Any person who, subsequent to January 1, 1921, has been or hereafter is convicted of an offense punishable as a felony in the State of California, or who has been or who is hereafter convicted of any offense in any place other than the State of California, which offense, if committed in the State of California, would have been punishable as a felony.’
Section 52.39 provides that it shall be unlawful for ‘any convicted person’ to be or remain in Los Angeles for a period of more than five days without registering; it requires any person having a place of abode outside the city to register if he comes into the city on five occasions or more during a 30-day period; and it prescribes the information to be furnished the Chief of Police on registering.
Section 52.43(b) makes the failure to register a continuing offense, each day’s failure constituting a separate offense.
Appellant, arrested on suspicion of another offense, was charged with a violation of this registration law. The evidence showed that she had been at the time of her arrest a resident of Los Angeles for over seven years. Within that period she had been convicted in Los Angeles of the crime of forgery, an offense which California punishes as a felony. Though convicted of a crime punishable as a felony, she had not at the time of her arrest registered under the Municipal Code. At the trial, appellant asserted that s 52.39 of the Code denies her due process of law and other rights under the Federal Constitution, unnecessary to enumerate. The trial court denied this objection. The case was tried to a jury which found appellant guilty. The court fined her \$250 and placed her on probation for three years. … The Appellate Department of the Superior Court affirmed the judgment, holding there was no merit to the claim that the ordinance was unconstitutional. … The case having been argued and reargued, we now hold that the registration provisions of the Code as sought to be applied here violate the Due Process requirement of the Fourteenth Amendment.
The registration provision, carrying criminal penalties, applies if a person has been convicted ‘of an offense punishable as a felony in the State of California’ or, in case he has been convicted in another State, if the offense ‘would have been punishable as a felony’ had it been committed in California. No element of willfulness is by terms included in the ordinance nor read into it by the California court as a condition necessary for a conviction.
We must assume that appellant had no actual knowledge of the requirement that she register under this ordinance, as she offered proof of this defense which was refused. The question is whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.
We do not go with Blackstone in saying that ‘a vicious will’ is necessary to constitute a crime, for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition. But we deal here with conduct that is wholly passive—mere failure to register. It is unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed. Cf. United States v. Balint; United States v. Dotterweich. The rule that ‘ignorance of the law will not excuse’ is deep in our law, as is the principle that of all the powers of local government, the police power is ‘one of the least limitable.’ On the other hand, due process places some limits on its exercise. Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act. [The Court cited various civil cases.] [T]he principle is equally appropriate where a person, wholly passive and unaware of any wrongdoing, is brought to the bar of justice for condemnation in a criminal case.
Registration laws are common and their range is wide. Many such laws are akin to licensing statutes in that they pertain to the regulation of business activities. But the present ordinance is entirely different. Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking. At most the ordinance is but a law enforcement technique designed for the convenience of law enforcement agencies through which a list of the names and addresses of felons then residing in a given community is compiled. The disclosure is merely a compilation of former convictions already publicly recorded in the jurisdiction where obtained. Nevertheless, this appellant on first becoming aware of her duty to register was given no opportunity to comply with the law and avoid its penalty, even though her default was entirely innocent. She could but suffer the consequences of the ordinance, namely, conviction with the imposition of heavy criminal penalties thereunder. We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. As Holmes wrote in The Common Law, “A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.” Its severity lies in the absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it. Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.
Reversed.
Mr. Justice BURTON, dissents because he believes that, as applied to this appellant, the ordinance does not violate her constitutional rights.
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN and Mr. Justice WHITTAKER join, dissenting.
The present laws of the United States and of the forty-eight States are thick with provisions that command that some things not be done and others be done, although persons convicted under such provisions may have had no awareness of what the law required or that what they did was wrongdoing. The body of decisions sustaining such legislation, including innumerable registration laws, is almost as voluminous as the legislation itself. The matter is summarized in United States v. Balint: ‘Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se.’
Surely there can hardly be a difference as a matter of fairness, of hardship, or of justice, if one may invoke it, between the case of a person wholly innocent of wrongdoing, in the sense that he was not remotely conscious of violating any law, who is imprisoned for five years for conduct relating to narcotics, and the case of another person who is placed on probation for three years on condition that she pay \$250, for failure, as a local resident, convicted under local law of a felony, to register under a law passed as an exercise of the State’s ‘police power.’ Considerations of hardship often lead courts, naturally enough, to attribute to a statute the requirement of a certain mental element—some consciousness of wrongdoing and knowledge of the law’s command—as a matter of statutory construction. Then, too, a cruelly disproportionate relation between what the law requires and the sanction for its disobedience may constitute a violation of the Eighth Amendment as a cruel and unusual punishment, and, in respect to the States, even offend the Due Process Clause of the Fourteenth Amendment.
But what the Court here does is to draw a constitutional line between a State’s requirement of doing and not doing. What is this but a return to Year Book distinctions between feasance and nonfeasance—a distinction that may have significance in the evolution of common-law notions of liability, but is inadmissible as a line between constitutionality and unconstitutionality….
If the generalization that underlies, and alone can justify, this decision were to be given its relevant scope, a whole volume of the United States Reports would be required to document in detail the legislation in this country that would fall or be impaired. I abstain from entering upon a consideration of such legislation, and adjudications upon it, because I feel confident that the present decision will turn out to be an isolated deviation from the strong current of precedents—a derelict on the waters of the law. Accordingly, I content myself with dissenting.
Notes and questions on Lambert (and its progeny)
1. The California registration requirement applied to “convicted persons,” a term defined to describe any person convicted of an offense punishable as a felony. But what is a felony? In the United States, this term is used to designate any crime with a potential punishment of more than one year imprisonment. Felonies are often distinguished from misdemeanors, which typically have a maximum sentence of one year. The felony designation turns on the maximum authorized punishment, not the punishment actually imposed.
2. The Supreme Court emphasizes three features of this case: a) the defendant apparently did not know of her duty to register, and the statute did not require proof of knowledge; b) the statute criminalized “wholly passive” conduct, “unlike the commission of acts”; and c) the statute did not address obviously blameworthy conduct (or an obviously blameworthy omission), but rather it was a measure established “for the convenience of law enforcement agencies.” Are all three considerations necessary to the outcome? Is any single one of these considerations sufficient to the outcome?
3. The Lambert Court held that the Los Angeles registration requirement was a violation of the Due Process Clause of the Fourteenth Amendment. That clause provides that no state shall “deprive any person of life, liberty, or property without due process of law.” This language, too, is subject to many different interpretations, as you will see in a Constitutional Law course! For purposes of learning criminal law, you should know that another constitutional provision imposes a somewhat different requirement related to notice. Article I, section 9 of the Constitution provides that “No Bill of Attainder or ex post facto Law shall be passed.” The Supreme Court has interpreted this language to prohibit retrospective criminal laws, or laws used to punish activity that took place before the law was enacted. The need for fair notice is often cited as a rationale for the prohibition of ex post facto legislation. However, neither Lambert nor ex post facto doctrine requires that a defendant have actual notice of the relevant criminal law in order to be subject to criminal liability.
4. Another notice question concerns criminalization in relation to enforcement: If this particular defendant’s ignorance of the registration requirement was indeed essential to the outcome in Lambert, then perhaps the case is not really a limitation on the power to criminalize. Could the Court be objecting instead to the enforcement decision that was made here – the decision to prosecute a particular defendant who did not know of the registration requirement? But if the California law did not explicitly require knowledge of a duty to register, then is there a problem with the criminalization decision after all? The usual rule is that “ignorance of the law is no excuse” – that is, a defendant’s ignorance of a particular criminal prohibition is usually irrelevant to his or her liability for violating that prohibition. Here, it seems to be ignorance of the rule in combination with the other factors mentioned above (the criminalization of passive conduct, and the regulatory nature of the offense) that seems to generate the due process violation.
5. Omission liability will be examined in more detail in Chapter Six, but it is important to understand now that Lambert does not categorically prohibit the imposition of criminal punishment for failures to act. The guiding principle is that a person may be punished for a failure to act in situations in which the law imposes a duty to act. The Los Angeles ordinance imposed a duty to register, and by itself, that duty was not a due process violation. Again, it appears to be the combination of various factors that leads the Court to find a due process violation here.
6. Notice that in Lambert the Court disclaims William Blackstone’s claim that “a vicious will” is essential to a crime, though the Court had quoted Blackstone for just that proposition in its Morissette opinion in 1952. Shortly after Lambert, one commentator wrote that “Mens rea is an important requirement, but it is not a constitutional requirement, except sometimes.” Herbert Packer, MensRea and the Supreme Court, 1962 Sup. Ct. Rev. 107.
7. Justice Frankfurter’s dissent quotes Balint (also discussed in Morissette) to distinguish between “regulatory measures” and “mala in se” crimes. Mala in se, typically translated as “wrong in itself,” is a label often applied to murder, rape, theft, and other crimes widely viewed as inherently wrongful. Mala in se crimes are often distinguished from mala prohibita (or malumprohibitum) offenses, crimes that address conduct that is “wrong (only) because it is prohibited,” or because a ruling authority has seen fit to regulate it. We might not think it is inherently wrongful to fail to file a registration with the state about one’s past criminal convictions (especially if the state imposed those convictions and is presumably already aware of them). But if the state has chosen to require registration by those with felony convictions, then to fail to register is malumprohibitum. Few legal outcomes depend on the classification of a crime as malumin se or malumprohibitum, but it is useful to know these terms and understand that in some circumstances, courts might evaluate an offense differently if they think it falls in one category rather than the other.
8. Justice Frankfurter’s dissent predicted that Lambert would be “an isolated deviation … a derelict upon the waters of the law.” About six decades later, it appears that Frankfurter was right. One 2020 study found that Lambert had been cited in 825 federal and state cases, but in almost all of these cases, courts distinguished Lambert or interpreted it narrowly, ultimately upholding registration requirements and other criminal laws arguably similar to the one applied to Virginia Lambert. See Cynthia Aikon, The Lost Promise of Lambert v. California, 49 Stetson L. Rev. 267, 278-280 (2020). A sampling of Lambert discussions from state and lower federal courts is below:
“We find the registration ordinance in Lambert to be readily distinguishable from the sex offender registration statute at issue in the case at hand. In Lambert, the registration requirement was a general municipal ordinance, whereas our Sex Offender Registry Act is a statewide registration program. Unlike the registration requirement in Lambert, the sex offender registration requirement is directed at a narrow class of defendants, convicted sex offenders, rather than all felons. … And, perhaps most importantly, instead of serving as a general law enforcement device, as the United States Supreme Court found the City of Los Angeles’ felon registration ordinance, our statute was specifically enacted as a public safety measure based on the Legislature’s determination that convicted sex offenders pose an unacceptable risk to the general public once released from incarceration.” State v. Latimore, 700 S.E. 2d 456, 461 (Ct. App. S.C. 2010) (upholding conviction for failure to register as sex offender).
“[W]hile Beckley’s failure to register is passive conduct, we find that passive conduct in and of itself is not controlling. Lambert stressed the innocent nature of the defendant’s conduct, which is not present in the instant case. A convicted sex offender’s failure to inquire into the state’s laws on registration is not wholly innocent conduct.” State v. Beckley, 2004 WL 1277358 (Ct. App. Ohio 2004) (upholding conviction for failure to register as a sex offender).
“That Hester had no actual notice of SORNA [a federal sex offender registration statute] is not sufficient to render his prosecution pursuant to that statute a violation of his due process rights. … Like our sister circuits, we find [Lambert’s reference to] ‘circumstances which might move one to inquire as to the necessity of registration’ to be critical. … Hester knew he had to update his registration [under New York state law]. Accordingly, Hester’s reliance on Lambert is misplaced. The fact that Hester did not receive notice of SORNA is not sufficient to render his prosecution for failure to register as a sex offender under [SORNA] a violation of his due process rights.” United States v. Hester, 589 F.3d 86, 92-93 (2nd Cir. 2009) (following other federal courts in rejecting Lambert challenge to the federal Sex Offender Registration and Notification Act, on the grounds that persons convicted of sex offenses should know of or ask about duties to register).
“[I]n the event that a defendant’s conduct is not “wholly passive,” because it arises from either the commission of an act or a failure to act under circumstances that reasonably should alert the defendant to the likelihood that inaction would subject him or her to criminal liability, Lambert simply does not apply.” State v. Miller, 800 S.E.2d 400, 407 (N.C. 2017) (rejecting challenge to a new state law creating strict liability felony offense for a person previously convicted of possessing methamphetamine to possess any product containing pseudoephedrine).
Different parts of the federal constitution could impose different kinds of constraints on criminalization. Lambert involved a due process challenge: a claim that California’s felon registration statute violated the constitutional requirement that no state shall deprive a person of life, liberty or property without “due process of law.” The Ex Post Facto Clause imposes a different constraint, though one that is concerned mainly with the timing of criminalization and less with questions about what conduct (or non-conduct) is criminalized. Still another potential limit on a state’s power to criminalize conduct comes from the Eighth Amendment, which prohibits the infliction of “cruel and unusual punishments.” As noted above, the Supreme Court found the Eighth Amendment to prohibit the criminalization of narcotics addiction in Robinson v. California (1962), but then the Court limited the apparent scope of Robinson a few years later in Powell v. Texas (1968), which permitted the state of Texas to convict a person suffering from alcoholism of the crime of “public intoxication.” Consider the application of Robinson and Powell in People v. Kellogg, below.
The PEOPLE
v.
Thomas KELLOGG
Court of Appeal, Fourth District, Division 1, California
119 Cal.App.4th 593
June 17, 2004
HALLER, J.
Thomas Kellogg contends his public intoxication conviction constitutes constitutionally proscribed cruel and/or unusual punishment because his status as an involuntarily homeless, chronic alcoholic makes it impossible for him to avoid being intoxicated in public. We reject this contention. The public intoxication statute … is carefully crafted to impose criminal culpability only if the publicly intoxicated person is unable to exercise care for his or her own safety or the safety of others, or is obstructing a public way. The statute does not punish the mere condition of being a homeless, chronic alcoholic but rather punishes conduct posing a public safety risk. Although criminal prosecution may not be the preferred way to address the daunting challenges faced by a person in Kellogg’s position, the Legislature’s policy choice to retain the misdemeanor offense of public intoxication to provide for the public welfare does not rise to the level of cruel and/or unusual punishment even as applied to a homeless, chronic alcoholic.
The facts of this case are essentially undisputed. On January 10, 2002, Officer Heidi Hawley, a member of the Homeless Outreach Team, responded to a citizen’s complaint of homeless persons camping under bridges and along State Route 163. She found Kellogg sitting on the ground in some bushes on the embankment off the freeway. Kellogg appeared inebriated and was largely incoherent. He was rocking back and forth, talking to himself and gesturing. Officer Hawley arrested Kellogg for public intoxication. He had \$445 in his pocket from disability income….
After his arrest on January 10, 2002, Kellogg posted \$104 cash bail and was released. Because he was homeless, he was not notified of his court date and he did not appear for his January 31 arraignment. A warrant for his arrest was issued on February 11, 2002; he was arrested again for public intoxication on February 19 and 27…. After a pretrial discussion in chambers about Kellogg’s physical and psychological problems, the trial court conditionally released Kellogg on his own recognizance and ordered that he be escorted to the Department of Veterans Affairs Hospital by Officer Hawley. He was not accepted for admission at the hospital and accordingly was returned to county jail.
Kellogg pleaded not guilty and filed a motion to dismiss the charges based on his constitutional right to be free of cruel and unusual punishment.
[At a pretrial hearing on the motion to dismiss,] Psychologist Gregg Michel and Psychiatrist Terry Schwartz testified on behalf of Kellogg. These experts explained that … [i]n addition to his severe alcohol dependence, which causes him to suffer withdrawal symptoms if he stops drinking, [Kellogg] suffers from dementia, long-term cognitive impairment, schizoid personality disorder, and symptoms of posttraumatic stress disorder. He has a history of seizure disorder and a closed head injury, and reported anxiety, depressive symptoms and chronic pain. He is estranged from his family. Physically, he has peripheral edema, gastritis, acute liver damage, and ulcerative colitis requiring him to wear a colostomy bag. To treat his various conditions and symptoms he has been prescribed Klonopin and Vicodin and may suffer from addiction to medication.
Dr. Michel opined that Kellogg was gravely disabled and incapable of providing for his basic needs, and that his degree of dysfunction was life-threatening. … Drs. Michel and Schwartz opined that Kellogg’s homelessness was not a matter of choice but a result of his gravely disabled mental condition….
Dr. Schwartz questioned whether a long-term, locked residential treatment setting was a viable option as density conditions (often four patients in a room) and group participation requirements were incompatible with Kellogg’s schizoid personality condition. Dr. Schwartz stated that Kellogg had been offered various forms of treatment and housing but had not made use of those resources; she posited that unless resources were offered in a different way, there would be no change in outcome….
In Dr. Michel’s view, Kellogg’s incarceration provided some limited benefit in that he obtained medication for seizures, did not have access to alcohol, received some treatment, and was more stable during incarceration than he was when homeless on the streets. However, such treatment was insufficient to be therapeutic, and medications prescribed for inmate management purposes can be highly addictive and might not be medically appropriate. Dr. Schwartz opined that incarceration was not an effective form of treatment…
Testifying for the prosecution, Physician James Dunford stated that at the jail facility, medical staff assess the arrestee’s condition and provide treatment as needed…. Dr. Dunford opined that between March 2 and 7, Kellogg’s condition had improved because his seizure medicine was restarted, his alcohol withdrawal was treated, his vital signs were stable, his colostomy bag was clean and intact, his overall cleanliness was restored, and he was interacting with people in a normal way.
… Finding that before his arrest Kellogg was offered assistance on at least three occasions and that his medical condition improved while in custody, the court denied the motion to dismiss the charges.
On April 2, 2002, the court found Kellogg guilty of one charge of violating section 647 arising from his conduct on January 10, 2002. At sentencing on April 30, the probation officer requested that the hearing be continued for another month so Kellogg could be evaluated for a possible conservatorship. Kellogg objected to further incarceration as violating the Eighth Amendment and opposed a conservatorship. Pointing to Dr. Michel’s assessment that Kellogg was not a suitable candidate for conservatorship, defense counsel argued that the conservatorship program did not have the resources to handle a person with the combination of Kellogg’s problems. Further, because of his medical complications, no recovery or board and care home felt comfortable accepting him. Kellogg requested probation to allow him to participate in the VA’s rehabilitative program…. The prosecution agreed with the defense suggestion that a concerted effort be made to place Kellogg in the VA program.
After expressing the difficult “Hobson’s choice” whereby there were no clear prospects presented to effectively assist Kellogg, the court sentenced him to 180 days in jail, with execution of sentence suspended for three years on the condition that he complete an alcohol treatment program and return to court on June 4, 2002, for a progress review.
After his release from jail, defense counsel made extensive, but unsuccessful, efforts to place Kellogg in an appropriate program and to find a permanent residence for him. On May 25 and 28, 2002, he was again arrested for public intoxication. After he failed to appear at his June 4 review hearing, his probation was summarily revoked. Kellogg was rearrested on June 12. After a probation revocation hearing, Kellogg’s probation was formally revoked and he was ordered to serve the 180–day jail sentence. The court authorized that his sentence be served in a residential rehabilitation program. However, no such program was found….
On July 11, 2003, the appellate division of the superior court affirmed the trial court’s denial of Kellogg’s motion to dismiss on Eighth Amendment grounds. We granted Kellogg’s request to have the matter transferred to this court for review.
Section 647(f) defines the misdemeanor offense of disorderly conduct by public intoxication as occurring when a person “is found in any public place under the influence of intoxicating liquor … in such a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor … interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.” Kellogg argues that this statute, as applied to him, constitutes cruel and/or unusual punishment prohibited by the Eighth Amendment to the federal Constitution [and the California state constitution]. He asserts that his chronic alcoholism and mental condition have rendered him involuntarily homeless and that it is impossible for him to avoid being in public while intoxicated. He argues because his public intoxication is a result of his illness and beyond his control, it is inhumane for the state to respond to his condition by subjecting him to penal sanctions.
It is well settled that it is cruel and unusual punishment to impose criminal liability on a person merely for having the disease of addiction. In Robinson v. California (1962), the United States Supreme Court invalidated a California statute which made it a misdemeanor to “be addicted to the use of narcotics.” The Robinson court recognized that a state’s broad power to provide for the public health and welfare made it constitutionally permissible for it to regulate the use and sale of narcotics, including, for example, such measures as penal sanctions for addicts who refuse to cooperate with compulsory treatment programs. But the court found the California penal statute unconstitutional because it did not require possession or use of narcotics, or disorderly behavior resulting from narcotics, but rather imposed criminal liability for the mere status of being addicted. Robinson concluded that just as it would be cruel and unusual punishment to make it a criminal offense to be mentally ill or a leper, it was likewise cruel and unusual to allow a criminal conviction for the disease of addiction without requiring proof of narcotics possession or use or antisocial behavior.
In Powell v. Texas (1968), the United States Supreme Court, in a five-to-four decision, declined to extend Robinson’s holding to circumstances where a chronic alcoholic was convicted of public intoxication, reasoning that the defendant was not convicted merely for being a chronic alcoholic, but rather for being in public while drunk. That is, the state was not punishing the defendant for his mere status, but rather was imposing “a criminal sanction for public behavior which may create substantial health and safety hazards, both for [the defendant] and for members of the general public….” In the plurality decision, four justices rejected the proposition set forth by four dissenting justices that it was unconstitutional to punish conduct that was “ ‘involuntary’ or ‘occasioned by a compulsion.’ ”
The fifth justice in the Powell plurality, Justice White, concurred in the result only, concluding that the issue of involuntary or compulsive behavior could be pivotal to the determination of cruel and unusual punishment, but the record did not show the defendant (who had a home) suffered from any inability to refrain from drinking in public. Justice White opined that punishing a homeless alcoholic for public drunkenness could constitute unconstitutional punishment if it was impossible for the person to resist drunkenness in a public place. … Kellogg argues Justice White, who was the deciding vote in Powell, would have sided with the dissenting justices had the circumstances of his case (i.e., an involuntarily homeless chronic alcoholic) been presented, thus resulting in a finding of cruel and unusual punishment by a plurality of the Supreme Court.
We are not persuaded. Although in Robinson the United States Supreme Court held it was constitutionally impermissible to punish for the mere condition of addiction, the court was careful to limit the scope of its decision by pointing out that a state may permissibly punish disorderly conduct resulting from the use of narcotics. This limitation was recognized and refined by the plurality opinion in Powell, where the court held it was permissible for a state to impose criminal punishment when the addict engages in conduct which spills into public areas. As stated in Powell and expressly reflected in the terms of section 647(f), public intoxication is a criminal offense because it can endanger the welfare of the intoxicated individual and the public….
Here, the reason Kellogg was subjected to misdemeanor culpability for being intoxicated in public was not because of his condition of being a homeless alcoholic, but rather because of his conduct that posed a safety hazard. If Kellogg had merely been drunk in public in a manner that did not pose a safety hazard (i.e., if he was able to exercise care for his own and the public’s safety and was not blocking a public way), he could not have been adjudicated guilty under section 647(f). The state has a legitimate need to control public drunkenness when it creates a safety hazard. It would be neither safe nor humane to allow intoxicated persons to stumble into busy streets or to lie unchecked on sidewalks, driveways, parking lots, streets, and other such public areas where they could be trampled upon, tripped over, or run over by cars. The facts of Kellogg’s public intoxication in the instant case show a clear potential for such harm. He was found sitting in bushes on a freeway embankment in an inebriated state. It is not difficult to imagine the serious possibility of danger to himself or others had he wandered off the embankment onto the freeway.
… [W]e conclude that the California Legislature’s decision to allow misdemeanor culpability for public intoxication, even as applied to a homeless chronic alcoholic such as Kellogg, is neither disproportionate to the offense nor inhumane. In deciding whether punishment is unconstitutionally excessive, we consider the degree of the individual’s personal culpability as compared to the amount of punishment imposed. To the extent Kellogg has no choice but to be drunk in public given the nature of his impairments, his culpability is low; however, the penal sanctions imposed on him under section 647(f) are correspondingly low. Given the state’s interest in providing for the safety of its citizens, including Kellogg, imposition of low-level criminal sanctions for Kellogg’s conduct does not tread on the federal or state constitutional proscriptions against cruel and/or unusual punishment.
… In presenting his argument, Kellogg points to the various impediments to his ability to obtain shelter and effective treatment, apparently caused by a myriad of factors including the nature of his condition and governmental policies and resources, and asserts that these impediments do not justify criminally prosecuting him. He posits that the Eighth Amendment “mandates that society do more for [him] than prosecute him criminally and repeatedly incarcerate him for circumstances which are beyond his control.”
We are sympathetic to Kellogg’s plight; however, we are not in a position to serve as policy maker to evaluate societal deficiencies and amelioration strategies. It may be true that the safety concerns arising from public intoxication can be addressed by means of civil custody rather than penal sanctions. Indeed, the Legislature has provided alternatives to penal sanctions against persons who are drunk in public, including civil protective custody and release without criminal processing. However, the Legislature has not seen fit to remove the option of criminal prosecution and conviction. Absent a constitutional violation, it is not our role to second-guess this policy determination.
Kellogg does not contend he was been arbitrarily deprived of alternatives to criminal prosecution in this case… rather, he broadly challenges his misdemeanor conviction as, in and of itself, being cruel and unusual punishment. Thus, our sole task in this appeal is to determine whether Kellogg’s conviction constituted cruel and/or unusual punishment. As set forth above, we find no such constitutional infirmity.
The judgment is affirmed.
McDONALD, J., dissenting.
…. The majority opinion appears to be based on the premise that Kellogg’s conduct posed a safety hazard and showed a clear potential for harm and therefore his conviction was not merely for being intoxicated in public. Section 647(f) punishes a person for being intoxicated in public “in such a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or … interferes with or obstructs … the free use of any street, sidewalk, or other public way.” However, the trial court did not find and the record is devoid of evidence showing that Kellogg was unable to care for his own safety or the safety of others or interfered with or obstructed any street, sidewalk or other public way. The record shows only that Kellogg was sitting under a bush on a highway embankment. That evidence is insufficient to support a finding he was actually interfering with or obstructing that highway or was unable to care for his or others’ safety. The majority opinion permits the mere potential or possibility that Kellogg would interfere with or obstruct that highway or become unable to care for his or others’ safety to be sufficient for a 647(f) conviction, which is therefore a conviction for simply being homeless and intoxicated in public.
… [Additionally, the] record does not support the People’s assertion that Kellogg’s homelessness was by choice. In support of their assertion, the People cite the testimony of Officer Hawley that she had offered Kellogg assistance on three occasions and each time he declined help. Considering the extensive expert testimony in the record regarding Kellogg’s chronic alcoholism, dementia, severe cognitive impairment, and schizoid personality disorder, his rejection of generalized offers of assistance cannot be viewed as a “choice” or voluntary decision by Kellogg to remain homeless.
Although the People assert that incarceration of Kellogg provides him with treatment similar to or better than he would receive were he civilly committed, the quality of his treatment in jail does not prevent his criminal conviction from constituting cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. As Justice Fortas stated in his dissenting opinion in Powell:
“It is entirely clear that the jailing of chronic alcoholics is punishment. It is not defended as therapeutic, nor is there any basis for claiming that it is therapeutic (or indeed a deterrent). The alcoholic offender is caught in a ‘revolving door’—leading from arrest on the street through a brief, unprofitable sojourn in jail, back to the street and, eventually, another arrest. The jails, overcrowded and put to a use for which they are not suitable, have a destructive effect upon alcoholic inmates.”
In any event, the evidence in the record does not support the People’s assertion.
… I would reverse the judgment.
Notes and questions on Kellogg
1. Distinguishing precedent: how does the Kellogg court distinguish between the criminalization of status or condition, which it says is unconstitutional under Robinson, and the criminalization of conduct? More specifically, why is addiction properly classified as a condition, while public intoxication is properly classified as conduct? How do threats to public safety play into the analysis? Is there any circumstance in which public intoxication would not pose a threat to public safety? Is there any circumstance in which narcotics addiction would not pose a threat to public safety?
2. The court classifies Kellogg’s public intoxication as conduct, but does the court view his conduct as voluntary? Does the majority opinion dispute the claim that Kellogg is unable to avoid violating this statute?
3. As you think about voluntariness and choice, consider the choices available to the police, prosecutors, and trial court. The trial court said it faced a “Hobson’s choice,” a phrase often used to describe a situation with no attractive alternative. But more precisely, a Hobson’s choice is a take-it-or-leave-it situation. Hobson was an English stable owner who rented horses. Rather than let his customers choose their favorite horse, he required them to take the horse nearest the stable door or none at all. In this case, the medical testimony seems to indicate that the available non-punitive treatment options are unlikely to help Kellogg recover. Nevertheless, is “leave it” still an option? Could prosecutors or courts simply decline to impose criminal sanctions, even in the absence of a non-criminal intervention strategy?
4. Recall four standard rationales for punishment discussed earlier in this chapter: deterrence, retribution or desert, incapacitation, and rehabilitation. Are any of these rationales applicable here? The designation of public intoxication as criminal seems unlikely to deter someone in Kellogg’s position. Does a criminal sanction give Kellogg his just deserts? What does Kellogg deserve, in your view? Incarceration does incapacitate him, in that it renders him unable to access alcohol or appear in public while intoxicated (or indeed, to appear in public at all). And state officials argued that incarceration also provided Kellogg with rehabilitative treatment that was as good or better than the treatment he would receive outside the criminal legal system, though this claim was contested. As you think about this case, consider both the criminalization decision—the choice to make public intoxication into a criminal offense—and the enforcement and conviction decisions—the choice to apply the public intoxication statute to Kellogg in particular. A legislature could choose to criminalize a broad category of conduct, public intoxication, without seeking to impose criminal sanctions on everyone who is intoxicated in public. Instead, the rationale for criminalization could be a desire to empower enforcement officials to exercise discretion and pursue convictions and punishment for some subset of people who are publicly intoxicated – people who, in the enforcement official’s judgment, are in particular need of deterrence, incapacitation, or rehabilitation, or people who are especially deserving of punishment.
5. Criminalization of acts, or of persons? Throughout most of this chapter, we have spoken of criminalization as the classification of an act as criminal. When, if ever, should the designation “criminal” be applied to a person rather than an act? The U.S. Supreme Court’s opinion in Robinson v. California, discussed by the Kellogg court, is sometimes interpreted to prohibit “the criminalization of status.” In Robinson, the Court struck down a statute that made it a crime to “be addicted to the use of narcotics.” The Court explained,
This statute, therefore, is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the ‘status’ of narcotic addiction a criminal offense, for which the offender may be prosecuted ‘at any time before he reforms.’ California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there.
It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. A State might determine that the general health and welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But, in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.
Robinson, 370 U.S. 660, 666 (1962). The Robinson Court was focused on the question whether an act, as opposed to a condition or a status, can be designated as a criminal offense. The Court does not address the separate issue of criminalization as itself a status: once acts are properly criminalized, persons convicted of those acts are often designated as “criminals” (or “felons,” or “offenders”), and as such, these persons hold a different social and legal status from “law-abiding citizens.”
6. Criminal law and disability: In this case, all parties seemed to agree that Kellogg had significant disabilities and his public intoxication was a product of those disabilities. Although Kellogg may have had health issues more extreme than the average defendant, rates of mental illness and other health problems are much higher among convicted and imprisoned persons than among the general population. When, if ever, should disability make a difference to criminal liability? When, if ever, should criminal law be used as a response to disability? We return to some of these issues later in this book when we consider the insanity defense and claims of diminished capacity.
7. Democracy, the Constitution, and criminal law decisions: Officer Hawley approached Kellogg on January 10 in response to a citizen’s complaint about homeless persons. Suppose that most citizens of San Diego want public intoxication to be criminal, and they want police officers to use the public intoxication statute to remove Kellogg and others like him from public spaces. Is there any reason courts and other public institutions should not defer to the will of the majority? Constitutional challenges to legislation often involve a counter-majoritarian claim, or an argument that the Constitution prevents the majority from making certain choices.
8. Criminalization decisions and other public decisions: The government makes many, many policy choices beyond the choice to criminalize. It enacts and enforces civil laws, it decides whether to provide welfare benefits or other goods (including housing and health care) to citizens, it makes funding decisions, and much more. These decisions will affect citizens’ well-being and behavior; the decisions may make harmful conduct more or less likely. Whether criminalization seems appropriate may depend upon one’s frame of reference – whether we consider the potentially criminal conduct in isolation, or the broader social and political context in which the conduct takes place. The Kellogg court focuses on the question whether public intoxication can be conceived as “conduct.” The court declines to consider whether imposing criminal sanctions for public intoxication is the best policy choice: “we are not in a position to serve as policy maker to evaluate societal deficiencies and amelioration strategies.” This argument about the appropriate role of the judiciary is fairly common. It rests on a dichotomy between “legal” questions that a court is empowered to answer, such as whether public intoxication is conduct, and “policy” questions that lie beyond the court’s power, such as whether criminal sanctions are a sensible response to problems of homelessness and alcoholism. The very characterization of an issue as a “legal” question or a “policy” question is often contested, and one crucial skill for a lawyer is the ability to frame issues in a way that will convince a court that it has the power to resolve those issues.
End of Chapter Review
Check Your Understanding (2-4)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
1. Holmes, The Common Law, considers intent in the chapter on The Criminal Law, and earlier makes the pithy observation: “Even a dog distinguishes between being stumbled over and being kicked.” [Fn. by the Court) | textbooks/biz/Criminal_Law/Criminal_Law%3A_An_Integrated_Approach_(Ristroph)/1.02%3A_Criminalization_Decisions.txt |
Introduction
Suppose a criminalization decision has been made; a legislature has enacted a new criminal statute. Now what? The enactment of a statute does not, all by itself, generate any prosecutions or convictions. In this sense, a criminal statute is not self-enforcing. Legislatures do not monitor for violations, make arrests, or file charges. These enforcement tasks are instead allocated to executive branch officials—most importantly, police and prosecutors. This chapter offers an overview of police and prosecutorial authority, with a particular focus on the interaction between enforcement authority and criminal statutes.
A few key points are worth noting at the outset, and each should become more clear as you read the chapter. First, police and prosecutors typically have the authority to enforce any criminal statute in the jurisdiction. (We encountered this principle in Chapter One in our study of Commonwealth v. Copenhaver, where we were able to contrast the general enforcement authority of most police officers to the narrower enforcement powers of Pennsylvania county sheriffs.) Broad authority to enforce is the first key idea to keep in mind; the second is broad discretion. By discretion, we mean that enforcement officials typically have a choice about whether to enforce a given statute. For most offenses in most jurisdictions, enforcement is not mandatory. A police officer who observes or suspects an offense has the power to investigate and perhaps make an arrest, but the officer is not obligated to do so. And a prosecutor who receives a report or evidence of an offense has the power to bring charges, but is not obligated to do so.
In addition to authority and discretion, a third important theme of this chapter is suspicion, a topic not traditionally covered in first-year criminal law courses. You have probably often heard it said that a criminal conviction requires proof beyond a reasonable doubt. We will consider standards of proof, and the guilty pleas that are much more common than proof through presentation of evidence, in more detail in the next chapter. Here in this chapter, we focus on enforcement powers rather than convictions, and enforcement powers do not require proof. The power to search or to make an arrest arises as soon as a police officer has a legally adequate level of suspicion, and the same is true for a prosecutor’s power to file charges. This book does not seek to teach you suspicion doctrines in detail; you will look much more closely at the meaning of “reasonable suspicion” or “probable cause” if you take a course on investigative criminal procedure. But this chapter does introduce the basic concept of legally adequate suspicion, since it is the key threshold condition for many criminal law enforcement powers.
The combination of authority, discretion, and suspicion is a potent mix. Long before there is any proof of wrongdoing, and even in cases where no proof is ever established, police and prosecutors gain powers to intrude into individuals’ lives and curtail important liberties. The ability to act on suspicion rather than proof, and the fact of broad enforcement discretion, create opportunities for racial bias to shape criminal law outcomes. That is the final and most important theme to emphasize throughout this chapter: enforcement decisions as a source of significant racial disparities. Criminalization decisions and adjudication decisions can also contribute to racial inequality in criminal law, but enforcement may be the place where racial disparities are most easily identified and documented.
Police Decisions
In the early 1990s, many Chicago citizens were concerned about high levels of violence and drug crime. Many community members expressed particular concern about gang intimidation, reporting that members of criminal gangs would establish control over particular streets or areas and intimidate the residents of that area. In 1992, the city adopted the following ordinance, which was soon challenged in court.
Chicago Municipal Code, § 8–4–015
(a) Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section.
(b) It shall be an affirmative defense to an alleged violation of this section that no person who was observed loitering was in fact a member of a criminal street gang.
(c) As used in this Section:
(1) ‘Loiter’ means to remain in any one place with no apparent purpose.
(2) ‘Criminal street gang’ means any ongoing organization, association in fact or group of three or more persons, whether formal or informal, having as one of its substantial activities the commission of one or more of the criminal acts enumerated in paragraph (3), and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
…..
(5) ‘Public place’ means the public way and any other location open to the public, whether publicly or privately owned.
(e) Any person who violates this Section is subject to a fine of not less than \$100 and not more than \$500 for each offense, or imprisonment for not more than six months, or both.
In addition to or instead of the above penalties, any person who violates this section may be required to perform up to 120 hours of community service….
CITY OF CHICAGO, Petitioner
v.
Jesus MORALES et al.
Supreme Court of the United States
527 U.S. 41
Decided June 10, 1999
Justice STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, and an opinion with respect to Parts III, IV, and VI, in which Justice SOUTER and Justice GINSBURG join.
In 1992, the Chicago City Council enacted the Gang Congregation Ordinance, which prohibits “criminal street gang members” from “loitering” with one another or with other persons in any public place. The question presented is whether the Supreme Court of Illinois correctly held that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.
I
… Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a “public place” is a “criminal street gang membe[r].” Second, the persons must be “loitering,” which the ordinance defines as “remain[ing] in any one place with no apparent purpose.” Third, the officer must then order “all” of the persons to disperse and remove themselves “from the area.” Fourth, a person must disobey the officer’s order. If any person, whether a gang member or not, disobeys the officer’s order, that person is guilty of violating the ordinance.
Two months after the ordinance was adopted, the Chicago Police Department promulgated … guidelines … to establish limitations on the enforcement discretion of police officers “to ensure that the anti-gang loitering ordinance is not enforced in an arbitrary or discriminatory way.” Chicago Police Department, General Order 92–4. [Only] sworn “members of the Gang Crime Section” and certain other designated officers [are authorized to make arrests under the ordinance, pursuant to] detailed criteria for defining street gangs and membership in such gangs. In addition, the order … provides that the ordinance “will be enforced only within … designated areas.” The city, however, does not release the locations of these “designated areas” to the public.
II
During the three years of its enforcement [before the ordinance was first held invalid in 1995], the police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance. In the ensuing enforcement proceedings, 2 trial judges upheld the constitutionality of the ordinance, but 11 others ruled that it was invalid, with one court finding that the “ordinance fails to notify individuals what conduct is prohibited, and it encourages arbitrary and capricious enforcement by police.”… We granted certiorari, and now affirm. Like the Illinois Supreme Court, we conclude that the ordinance enacted by the city of Chicago is unconstitutionally vague.
III
The basic factual predicate for the city’s ordinance is not in dispute. As the city argues in its brief, “the very presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business. That, in turn, imperils community residents’ sense of safety and security, detracts from property values, and can ultimately destabilize entire neighborhoods.” The findings in the ordinance explain that it was motivated by these concerns. We have no doubt that a law that directly prohibited such intimidating conduct would be constitutional[1]but this ordinance broadly covers a significant amount of additional activity. Uncertainty about the scope of that additional coverage provides the basis for respondents’ claim that the ordinance is too vague.
… [An] imprecise laws[] may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. .. [A]s the United States recognizes, the freedom to loiter for innocent purposes is part of the “liberty” protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this “right to remove from one place to another according to inclination” as “an attribute of personal liberty” protected by the Constitution. Williams v. Fears, 179 U.S. 270 (1900); see also Papachristou v. Jacksonville, 405 U.S. 156 (1972).[2]
… [I]t is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that “simply regulates business behavior and contains a scienter requirement.” It is a criminal law that contains no mens rea requirement, and infringes on constitutionally protected rights.
Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement….
IV
“It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits….” Giaccio v. Pennsylvania, 382 U.S. 399 (1966). [T]he definition of [“loiter”] in this ordinance—“to remain in any one place with no apparent purpose”—does not [have a clear meaning]. It is difficult to imagine how any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an “apparent purpose.” If she were talking to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose?
Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of “loitering,” but rather about what loitering is covered by the ordinance and what is not. The Illinois Supreme Court emphasized the law’s failure to distinguish between innocent conduct and conduct threatening harm. [Although] a number of state courts that have upheld ordinances that criminalize loitering combined with some other overt act or evidence of criminal intent[,] state courts have uniformly invalidated laws that do not join the term “loitering” with a second specific element of the crime.
The city’s principal response to this concern about adequate notice is that loiterers are not subject to sanction until after they have failed to comply with an officer’s order to disperse. “[W]hatever problem is created by a law that criminalizes conduct people normally believe to be innocent is solved when persons receive actual notice from a police order of what they are expected to do.” We find this response unpersuasive for at least two reasons.
… If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. Because an officer may issue an order only after prohibited conduct has already occurred, [the officer’s order] cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse. Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law.
Second, the terms of the dispersal order compound the inadequacy of the notice…. It provides that the officer “shall order all such persons to disperse and remove themselves from the area.” This vague phrasing raises a host of questions. After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? …
The Constitution does not permit a legislature to “set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.” United States v. Reese, 92 U.S. 214 (1876). This ordinance is … vague “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.”
V
The broad sweep of the ordinance also violates “the requirement that a legislature establish minimal guidelines to govern law enforcement.” Kolender v. Lawson, 461 U.S. 352 (1983). There are no such guidelines in the ordinance. In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may—indeed, she “shall”—order them to disperse.
Recognizing that the ordinance does reach a substantial amount of innocent conduct, we turn, then, to its language to determine if it “necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat.” Kolender. As we discussed in the context of fair notice, the principal source of the vast discretion conferred on the police in this case is the definition of loitering as “to remain in any one place with no apparent purpose.” As the Illinois Supreme Court interprets that definition, it “provides absolute discretion to police officers to decide what activities constitute loitering.” We have no authority to construe the language of a state statute more narrowly than the construction given by that State’s highest court….
It is true, as the city argues, that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members. But this ordinance, for reasons that are not explained in the findings of the city council, requires no harmful purpose and applies to nongang members as well as suspected gang members. It applies to everyone in the city who may remain in one place with one suspected gang member as long as their purpose is not apparent to an officer observing them. Friends, relatives, teachers, counselors, or even total strangers might unwittingly engage in forbidden loitering if they happen to engage in idle conversation with a gang member….
VI
In our judgment, the Illinois Supreme Court correctly concluded that the ordinance does not provide sufficiently specific limits on the enforcement discretion of the police “to meet constitutional standards for definiteness and clarity.” We recognize the serious and difficult problems testified to by the citizens of Chicago that led to the enactment of this ordinance…. However, in this instance the city has enacted an ordinance that affords too much discretion to the police and too little notice to citizens who wish to use the public streets.
Accordingly, the judgment of the Supreme Court of Illinois is
Affirmed.
Justice O’CONNOR, with whom Justice BREYER joins, concurring in part and concurring in the judgment.
… As it has been construed by the Illinois court, Chicago’s gang loitering ordinance is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforcement officers. In particular, it fails to provide police with any standard by which they can judge whether an individual has an “apparent purpose.” Indeed, because any person standing on the street has a general “purpose”—even if it is simply to stand—the ordinance permits police officers to choose which purposes are permissible….
It is important to courts and legislatures alike that we characterize more clearly the narrow scope of today’s holding. As the ordinance comes to this Court, it is unconstitutionally vague. Nevertheless, there remain open to Chicago reasonable alternatives to combat the very real threat posed by gang intimidation and violence. For example, the Court properly and expressly distinguishes the ordinance from laws that require loiterers to have a “harmful purpose,” from laws that target only gang members, and from laws that incorporate limits on the area and manner in which the laws may be enforced. … Indeed, as the plurality notes, the city of Chicago has several laws that do [have these additional requirements]. Chicago has even enacted a provision that “enables police officers to fulfill … their traditional functions,” including “preserving the public peace.” Specifically, Chicago’s general disorderly conduct provision allows the police to arrest those who knowingly “provoke, make or aid in making a breach of peace.” See Chicago Municipal Code § 8–4–010 (1992).
In my view, the gang loitering ordinance could have been construed more narrowly. The term “loiter” might possibly be construed in a more limited fashion to mean “to remain in any one place with no apparent purpose other than to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities.” Such a definition would be consistent with the Chicago City Council’s findings and would avoid the vagueness problems of the ordinance as construed by the Illinois Supreme Court….
The Illinois Supreme Court did not choose to give a limiting construction to Chicago’s ordinance. …[W]e cannot impose a limiting construction that a state supreme court has declined to adopt. Accordingly, I join Parts I, II, and V of the Court’s opinion and concur in the judgment.
[Partial concurrences by Justices KENNEDY and BREYER, each concurring in the judgment, omitted.]
Justice SCALIA, dissenting.
The citizens of Chicago were once free to drive about the city at whatever speed they wished. At some point Chicagoans (or perhaps Illinoisans) decided this would not do, and imposed prophylactic speed limits designed to assure safe operation by the average (or perhaps even subaverage) driver with the average (or perhaps even subaverage) vehicle. This infringed upon the “freedom” of all citizens, but was not unconstitutional.
… Until the ordinance that is before us today was adopted, the citizens of Chicago were free to stand about in public places with no apparent purpose—to engage, that is, in conduct that appeared to be loitering. In recent years, however, the city has been afflicted with criminal street gangs. As reflected in the record before us, these gangs congregated in public places to deal in drugs, and to terrorize the neighborhoods by demonstrating control over their “turf.” Many residents of the inner city felt that they were prisoners in their own homes. Once again, Chicagoans decided that to eliminate the problem it was worth restricting some of the freedom that they once enjoyed. The means they took was similar to the second, and more mild, example given above rather than the first: Loitering was not made unlawful, but when a group of people occupied a public place without an apparent purpose and in the company of a known gang member, police officers were authorized to order them to disperse, and the failure to obey such an order was made unlawful. The minor limitation upon the free state of nature that this prophylactic arrangement imposed upon all Chicagoans seemed to them (and it seems to me) a small price to pay for liberation of their streets.
I
… Both the plurality opinion and the concurrences display a lively imagination, creating hypothetical situations in which the law’s application would (in their view) be ambiguous. But that creative role has been usurped from petitioner, who can defeat respondents’ facial challenge by conjuring up a single valid application of the law. My contribution would go something like this [with apologies to the creators of West Side Story]: Tony, a member of the Jets criminal street gang, is standing alongside and chatting with fellow gang members while staking out their turf at Promontory Point on the South Side of Chicago; the group is flashing gang signs and displaying their distinctive tattoos to passersby. Officer Krupke, applying the ordinance at issue here, orders the group to disperse. After some speculative discussion (probably irrelevant here) over whether the Jets are depraved because they are deprived, Tony and the other gang members break off further conversation with the statement—not entirely coherent, but evidently intended to be rude—“Gee, Officer Krupke, krup you.” A tense standoff ensues until Officer Krupke arrests the group for failing to obey his dispersal order. Even assuming (as the Justices in the majority do, but I do not) that a law requiring obedience to a dispersal order is impermissibly vague unless it is clear to the objects of the order, before its issuance, that their conduct justifies it, I find it hard to believe that the Jets would not have known they had it coming. That should settle the matter of respondents’ facial challenge to the ordinance’s vagueness.
II
…[T]here is not the slightest evidence for the existence of a genuine constitutional right to loiter. Justice THOMAS recounts the vast historical tradition of criminalizing the activity….
III
[The plurality claims that] this criminal ordinance contains no mens rea requirement. The first step in analyzing this proposition is to determine what the actus reus, to which that mens rea is supposed to be attached, consists of. The majority believes that loitering forms part of (indeed, the essence of) the offense, and must be proved if conviction is to be obtained. That is not what the ordinance provides. The only part of the ordinance that refers to loitering is the portion that addresses, not the punishable conduct of the defendant, but what the police officer must observe before he can issue an order to disperse; and what he must observe is carefully defined in terms of what the defendant appears to be doing, not in terms of what the defendant is actually doing. The ordinance does not require that the defendant have been loitering (i.e., have been remaining in one place with no purpose), but rather that the police officer have observed him remaining in one place without any apparent purpose. Someone who in fact has a genuine purpose for remaining where he is (waiting for a friend, for example, or waiting to hold up a bank) can be ordered to move on (assuming the other conditions of the ordinance are met), so long as his remaining has no apparent purpose. It is likely, to be sure, that the ordinance will come down most heavily upon those who are actually loitering (those who really have no purpose in remaining where they are); but that activity is not a condition for issuance of the dispersal order.
The only act of a defendant that is made punishable by the ordinance—or, indeed, that is even mentioned by the ordinance—is his failure to “promptly obey” an order to disperse. The question, then, is whether that actus reus must be accompanied by any wrongful intent—and of course it must. As the Court itself describes the requirement, “a person must disobey the officer’s order.” No one thinks a defendant could be successfully prosecuted under the ordinance if he did not hear the order to disperse, or if he suffered a paralysis that rendered his compliance impossible. The willful failure to obey a police order is wrongful intent enough.
* * *
The fact is that the present ordinance is entirely clear in its application, cannot be violated except with full knowledge and intent, and vests no more discretion in the police than innumerable other measures authorizing police orders to preserve the public peace and safety. As suggested by their tortured analyses, and by their suggested solutions that bear no relation to the identified constitutional problem, the majority’s real quarrel with the Chicago ordinance is simply that it permits (or indeed requires) too much harmless conduct by innocent citizens to be proscribed. As Justice O’CONNOR’s concurrence says with disapprobation, “the ordinance applies to hundreds of thousands of persons who are not gang members, standing on any sidewalk … or other location open to the public.”
But in our democratic system, how much harmless conduct to proscribe is not a judgment to be made by the courts. So long as constitutionally guaranteed rights are not affected, and so long as the proscription has a rational basis, all sorts of perfectly harmless activity by millions of perfectly innocent people can be forbidden—riding a motorcycle without a safety helmet, for example, starting a campfire in a national forest, or selling a safe and effective drug not yet approved by the Food and Drug Administration. All of these acts are entirely innocent and harmless in themselves, but because of the risk of harm that they entail, the freedom to engage in them has been abridged. The citizens of Chicago have decided that depriving themselves of the freedom to “hang out” with a gang member is necessary to eliminate pervasive gang crime and intimidation…. This Court has no business second-guessing either the degree of necessity or the fairness of the trade.
I dissent from the judgment of the Court.
Justice THOMAS, with whom THE CHIEF JUSTICE and Justice SCALIA join, dissenting.
…. By invalidating Chicago’s ordinance, I fear that the Court has unnecessarily sentenced law-abiding citizens to lives of terror and misery. The ordinance is not vague. “[A]ny fool would know that a particular category of conduct would be within [its] reach.” Kolender v. Lawson (1983) (White, J. dissenting)….
I
The human costs exacted by criminal street gangs are inestimable…. Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that the Court does not give sufficient consideration, often relegating them to the status of prisoners in their own homes…. The city of Chicago has suffered the devastation wrought by this national tragedy….
Before enacting its ordinance, the Chicago City Council held extensive hearings.… Following these hearings, the council found that “criminal street gangs establish control over identifiable areas … by loitering in those areas and intimidating others from entering those areas.” It further found that the mere presence of gang members “intimidate[s] many law abiding citizens” and “creates a justifiable fear for the safety of persons and property in the area.” It is the product of this democratic process—the council’s attempt to address these social ills—that we are asked to pass judgment upon today.
II
As part of its ongoing effort to curb the deleterious effects of criminal street gangs, the citizens of Chicago sensibly decided to return to basics. The ordinance does nothing more than confirm the well-established principle that the police have the duty and the power to maintain the public peace, and, when necessary, to disperse groups of individuals who threaten it….
The plurality’s sweeping conclusion that this ordinance infringes upon a liberty interest protected by the Fourteenth Amendment’s Due Process Clause withers when exposed to the relevant history: Laws prohibiting loitering and vagrancy have been a fixture of Anglo–American law at least since the time of the Norman Conquest…. The American colonists enacted laws modeled upon the English vagrancy laws, and at the time of the founding, state and local governments customarily criminalized loitering and other forms of vagrancy. Vagrancy laws were common in the decades preceding the ratification of the Fourteenth Amendment, and remained on the books long after….
The Court concludes that the ordinance is also unconstitutionally vague because it fails to provide adequate standards to guide police discretion and because, in the plurality’s view, it does not give residents adequate notice of how to conform their conduct to the confines of the law. I disagree on both counts.
At the outset, it is important to note that the ordinance does not criminalize loitering per se. Rather, it penalizes loiterers’ failure to obey a police officer’s order to move along. A majority of the Court believes that this scheme vests too much discretion in police officers. Nothing could be further from the truth. Far from according officers too much discretion, the ordinance merely enables police officers to fulfill one of their traditional functions. Police officers are not, and have never been, simply enforcers of the criminal law. They wear other hats—importantly, they have long been vested with the responsibility for preserving the public peace….
In order to perform their peacekeeping responsibilities satisfactorily, the police inevitably must exercise discretion. Indeed, by empowering them to act as peace officers, the law assumes that the police will exercise that discretion responsibly and with sound judgment. That is not to say that the law should not provide objective guidelines for the police, but simply that it cannot rigidly constrain their every action. By directing a police officer not to issue a dispersal order unless he “observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place,” Chicago’s ordinance strikes an appropriate balance between those two extremes. Just as we trust officers to rely on their experience and expertise in order to make spur-of-the-moment determinations about amorphous legal standards such as “probable cause” and “reasonable suspicion,” so we must trust them to determine whether a group of loiterers contains individuals (in this case members of criminal street gangs) whom the city has determined threaten the public peace. See Ornelas v. United States, 517 U.S. 690 (1996) (“Articulating precisely what ‘reasonable suspicion’ and ‘probable cause’ mean is not possible. They are commonsense, nontechnical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act….”). In sum, the Court’s conclusion that the ordinance is impermissibly vague because it “necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat” cannot be reconciled with common sense, longstanding police practice, or this Court’s Fourth Amendment jurisprudence.
… In concluding that the ordinance adequately channels police discretion, I do not suggest that a police officer enforcing the Gang Congregation Ordinance will never make a mistake. Nor do I overlook the possibility that a police officer, acting in bad faith, might enforce the ordinance in an arbitrary or discriminatory way. But … [i]nstances of arbitrary or discriminatory enforcement of the ordinance, like any other law, are best addressed when (and if) they arise, rather than prophylactically through the disfavored mechanism of a facial challenge on vagueness grounds.
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Notes and questions about City of Chicago v. Morales
1. When police stop an individual, question that person, or make an arrest, what is the source of their power? We first considered this question in Chapter One with Commonwealth v. Copenhaver. Recall that the majority of the Pennsylvania Supreme Court viewed the sheriff’s authority to stop or arrest as a matter of common law, while a partial dissenting opinion argued that the Pennsylvania legislature should define the scope of sheriffs’ authority by statute. In most jurisdictions, police are empowered – either by common law tradition or a statute – to enforce any criminal statute. (They are often empowered to enforce non-criminal statutes, such as civil traffic offenses, as well.) The Chicago ordinance under consideration in Morales seems to give the police a new power: the power to order persons to leave a given area when one or more of the persons gathered is suspected to belong to a criminal gang. If a person ordered to disperse does not do so, then the officer may make an arrest. Statutes that make it a crime to disobey a police officer’s order to disperse are fairly common, but to survive constitutional review, they usually must condition the officer’s power to order persons to disperse on specific circumstances such as an immediate threat to public safety. In Morales, the plurality concluded that given the ambiguity of the term “loitering,” the ordinance was too vague (even with its additional element of suspected gang membership) to meet constitutional requirements of due process.
2. Why didn’t the police just arrest suspected gang members, instead of ordering them to disperse? “Being a gang member” is not itself a crime, and an attempt to criminalize gang membership itself could be subject to its own constitutional challenges, including the claim that it is a criminalization of status. (Recall the discussion of Robinson v. California and Powell v. Texas in the previous chapter.) But notice that the ordinance defined “criminal street gang” as a group that commits certain criminal acts, and notice also that a police superintendent reported that “90 percent” of the objectionable instances of “gang loitering” involved conduct that was separately criminalized. Why didn’t the police make arrests for “intimidation,” “gang conspiracy,” “disorderly conduct,” or other offenses, rather than rely upon the gang loitering statute? What benefits, to law enforcement officials or to the community more generally, are achieved by the gang loitering statute?
3. The Chicago ordinance provided that “whenever” an officer observes gang loitering, he “shall” order the persons loitering to disperse. In a footnote not included above, the plurality observed that one could argue that the ordinance “affords the police no discretion, since it speaks with the mandatory ‘shall.’ However, not even the city makes this argument, which flies in the face of common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances.” Morales, 527 U.S. at 63, n. 32. This is an important reminder that in almost all cases, the power of police to enforce statutes is discretionary – police have the option but not the obligation to enforce a given statute. There are specific exceptions to this rule. For example, some jurisdictions have enacted domestic violence statutes with mandatory arrest provisions in an attempt to counter patterns of nonenforcement. But mandatory arrest is a rare exception and not the general rule. And even a mandatory arrest provision may prove difficult to enforce if police simply decline to make the arrest. See Castle Rock v. Gonzales, 545 U.S. 748 (2005).
4. Analysis of the elements of the Chicago ordinance is not the main focus of any of the opinions in Morales, but each opinion rests on a particular interpretation of the law. As a reminder, it’s useful to practice statutory interpretation with each statute you encounter. The plurality characterized the Chicago ordinance as “a criminal law that contains no mens rea requirement.” Justice Scalia disagreed. What are the elements of the offense, including actus reus and mens rea, according to Scalia? According to the plurality? (Hint: look at the first paragraph of Part I of the plurality opinion, and Part III of Justice Scalia’s opinion.) Compare the plurality’s analysis, and Justice Scalia’s, to the text of the ordinance. Which interpretation seems most accurate to you?
5. How did Chicago’s anti-loitering efforts play out on the street? In other words, what were the situations and circumstances that led to actual arrests under this ordinance? The U.S. Supreme Court did not go into factual details of specific arrests in its Morales opinion. However, in the defendants’ brief to the state supreme court, there are some descriptions of encounters that led to the arrests of Jesus Morales and other individuals charged with violating the Chicago anti-loitering law. As you read these descriptions, think about suspicion. How do police officers form the suspicion that someone is a gang member?
[Officer’s version:] Officer Matthew Craig testified at a bench trial that he observed Gregorio Gutierrez standing at the corner of Broadway and Winona Streets with two other men “doing absolutely nothing.” Officer Craig and his partner immediately told them to break up and leave the area. Officer Craig and his partner drove off around the block. When they returned, they saw Gutierrez standing at the same corner and arrested him for gang loitering. According to Officer Craig, Gutierrez had told him on previous occasions that he belonged to the Latin Kings.
[Defendant’s version:] Gregorio Gutierrez testified that he had left his home with his brother and was walking towards a nearby El stop to go to their mother’s place of employment. Along the way, they stopped to purchase a sandwich and soda from a store. Officer Craig and his partner drove up to them at the corner and arrested them without ever telling them to leave. When Gutierrez asked why he was being arrested, “they told us they don’t like us.” Gutierrez never told Officer Craig that he was a member of the Latin Kings. Gutierrez was no longer a member of the Latin Kings and was not a member on June 3, 1993. No one else with him at the corner was a member of the Latin Kings.
[Officer’s version:] At a bench trial, Officer Ray Frano testified that he saw approximately six young male Hispanics standing at the street corner by 1100 West Belmont “(t)alking to citizens on the street.” The neighborhood was predominately Caucasian. Officer Frano approached the Hispanic teenagers on the corner with the stated reason: “(b)ecause we wanted to know if they lived in the neighborhood or from the neighborhood.” He told the group of Hispanic teenagers that he would arrest them if they did not leave. Officer Frano left the scene. When he returned later, he arrested Jesus Morales and another person at the corner for gang loitering. According to Officer Frano, he believed Morales was a gang member because Morales wore blue and black clothing.
[Defendant’s version:] Jesus Morales testified that he was pausing at the intersection while walking on crutches home from a nearby hospital. After Morales told Officer Frano that he had no outstanding warrants, Officer Frano arrested him for gang loitering. Morales himself was not a gang member although he knew that the other person present on the corner was a Gangster Disciple.
Brief of Defendants-Appellees to Illinois Supreme Court, City of Chicago v. Morales, 1996 WL 33437124 (internal citations omitted).
6. Consider the accounts above in relation to the statistics reported at the beginning of Part II of the Court’s opinion. The Court states that during the first three years that the ordinance was in effect, “the police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance.” Assuming these figures are roughly accurate, nearly half of the people who received a dispersal order were ultimately arrested for violating the ordinance. Did half the people who were ordered to disperse simply refuse to do so? Or did police make arrests even without first giving an order to disperse, as suggested by some of the defendants?
7. While the ordinance was in effect, the Chicago police department issued an order to guide officers in enforcement. This order stated that gang “membership may not be established solely because an individual is wearing clothing available for sale to the general public.” Chicago Police Department, General Order 92-4, quoted in City of Chicago v. Morales, 687 N.E.2d 53, 64 n. 1 (1997). Consider again Officer Frano’s explanations of why he approached Jesus Morales and then ordered him to disperse, quoted above in the excerpt from the defendants’ brief to the state court. Frano mentioned Morales’s clothing, but also the area: he noticed a group of “young male Hispanics” in a predominantly Caucasian neighborhood and wanted to know if they were “from the neighborhood.” Is it fair to say that the ingredients of suspicion here are clothing, race, and place?
8. In fact, most persons prosecuted under the Chicago ordinance were Black or Latino. See Dorothy Roberts, Foreword: Race, Vagueness, and the Social Meaning of Order Maintenance Policing, 89 J. Crim. L. & Criminology 775, 776 n. 2 (1999). At the same time, defenders of the ordinance, including the Morales dissenters, argued that minority communities supported the ordinance as a way to make their neighborhoods safer. Professor Roberts reports that Blacks and other minority residents actually held conflicting opinions about the ordinance. Should the possibility of racialized patterns of enforcement affect the criminalization decision – that is, the legislative decision to enact a new law? How, if at all, should racialized patterns of enforcement affect the constitutional review of a criminal statute? We return to this question with United States v. Armstrong later in this chapter.
9. Across jurisdictions, the racialized conception of a “gang” has drawn scholarly attention. Some scholars argue that gangs do tend to be composed of members of the same minority racial group. Others have argued that systemic racial biases shape the labeling of groups as “gangs,” with law enforcement less likely to classify a group of white persons as a criminal gang. For citations to the literature and a close analysis of the “gang” designation in federal prosecutions, see Jordan Blair Woods, Systemic Racial Bias and RICO’s Application to Criminal Street and Prison Gangs, 17 Mich. J. Race & L. 303 (2012).
10. Void-for-vagueness doctrine is often said to address two separate concerns: first, the worry that a vague law will fail to give individuals fair warning, or notice, that specific conduct will be subject to criminal liability; and second, the worry that a vague law will enable arbitrary or discriminatory enforcement. Notice the connection between discretion and the possibility of discrimination: if police have wide discretion to select persons for loitering arrests, there arises the possibility that they will select persons for arrest on the basis of race (or some other factor not identified in the statute). A third concern, related to the first two, is that vague statutes can blur or collapse the distinction between criminalization decisions and enforcement decisions, so that in effect police decide what conduct is criminal. To express this worry, the Morales plurality quoted Kolender v. Lawson (1983), an earlier decision striking down a loitering statute on vagueness grounds, in part because the statute “necessarily entrust[ed] lawmaking to the moment-to-moment judgment of the policeman on his beat.”
11. In their dissents, Justice Scalia and Thomas pointed out that American criminal laws have long criminalized “loitering and other forms of vagrancy.” To Scalia and Thomas, this historical tradition was relevant because it suggested that Chicago acted well within its constitutional powers in criminalizing gang loitering. The Morales plurality responded by alluding to the racialized history of vagrancy law, especially the use of vagrancy prosecutions after the Civil War to push Black Americans into forced labor. See footnote 2 above, which was footnote 20 of the unedited opinion. The history of vagrancy offers an important illustration of the interaction between broad criminalization and broad enforcement discretion, as explored later in this chapter.
12. In 2000, Chicago adopted a revised gang loitering ordinance, taking guidance from Justice O’Connor’s concurring opinion in Morales, and perhaps also from vagrancy statutes that survived constitutional challenges. The new ordinance defines gang loitering as “remaining in any one place under circumstances that would warrant a reasonable person to believe that the purpose or effect of that behavior is to enable a criminal street gang to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities.” Chi. Ill. Mun. Code § 8-5-015 (2000). Do you think the new law avoids the problems of notice or enforcement discretion that the Court found in the first version of the law?
Vagrancy Then and Now
“Laws prohibiting loitering and vagrancy have been a fixture of Anglo-American law at least since the time of the Norman Conquest,” wrote Justice Thomas in his dissent in City of Chicago v. Morales. Morales explored the meaning of the term loiter, but what is “vagrancy”? The term is often associated with idleness, but as a criminal offence, vagrancy is notoriously hard to define. Arguably, that is the point of the term: to capture an array of behaviors or conditions that are not easily defined in a written statute. Here is one typical vagrancy statute:
Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.
What is a rogue, a vagabond, a wanton person, a habitual loafer? This particular statute, Jacksonville Ordinance Code § 26-57, was found to be unconstitutionally vague in Papachristou v. City of Jacksonville (1972). Until Papachristou, the legitimacy of vagrancy law was largely taken for granted, and even after Papachristou, new versions of vagrancy have persisted, as discussed below. According to one scholar, vagrancy laws were popular among ruling authorities for two reasons. “First, the laws’ breadth and ambiguity gave the police virtually unlimited discretion…. [I]t was almost always possible to justify a vagrancy arrest.” Risa Goluboff, Vagrant Nation 2 (2016). Additionally, “vagrancy laws made it a crime to be a certain type of person…. Where most American laws required people to do something criminal before they could be arrested, vagrancy laws emphatically did not.” Id. “The goals was to prevent crimes which may likely flow from a vagrant’s mode of life…. Such preventive purpose wholly fails if a law enforcement officer must wait until a crime is committed.” Id. (internal quotation marks omitted). Another function of vagrancy and loitering laws, echoed by Chicago’s approach to “gang loitering,” was simply to enable police to clear public spaces of people thought to be dangerous or otherwise undesirable. Once brought to court, many persons arrested for vagrancy would be offered dismissal of the charges on the condition that they leave the area and not return.
But in other contexts, the point of a vagrancy arrest was very different. As the Morales plurality mentioned [Fn. 2 in the opinion as edited above], “vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery.” The Thirteenth Amendment to the U.S. Constitution abolishes slavery “except as a punishment for crime.” After the Thirteenth Amendment was adopted, many southern states sought to replace the lost labor of enslaved persons through a practice known as “convict leasing.” Black men and women were arrested and prosecuted for vagrancy, then “leased” or “sold” to companies that would force them to labor. A Pulitzer-Prize-winning historical study of convict leasing opens with this example:
On March 30, 1908, Green Cottenham was arrested by the sheriff of Shelby County, Alabama, and charged with vagrancy.
Cottenham had committed no true crime. Vagrancy, the offense of a person not being able to prove at a given moment that he or she is employed, was … dredged up from legal obscurity at the end of the nineteenth century by the state legislatures of Alabama and other southern states. It was capriciously enforced by local sheriffs and constables, adjudicated by mayors and notaries public … and, most tellingly in a time of massive unemployment among all southern men, was reserved almost exclusively for black men. Cottenham’s offense was blackness.
… Cottenham was found guilty in a swift appearance before the county judge and immediately sentenced to a thirty-day term of hard labor. Unable to pay the array of fees assessed on every prisoner … Cottenham’s sentence was extended to nearly a year of hard labor. The next day, Cottenham was sold [to a mining company which would] pay off Cottenham’s fine and fees.
Douglas Blackmon, Slavery By Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (2008).
Convict leasing eventually came to an end after World War II, in part because of a change in enforcement decisions: federal prosecutors finally began to enforce the federal statutes that made “peonage,” or the use of forced labor, into a crime. Even so, the separate vagrancy statutes remained valid law. Indeed, even after the 1972 Papachristou decision struck down the Jacksonville vagrancy ordinance quoted above, and called into question the constitutionality of similar laws, vagrancy did not exactly fade to obscurity. Florida enacted a new vagrancy law that made it a crime “to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” (See Goluboff, Vagrant Nation, p. 331.) Chicago similarly re-enacted a new version of its gang loitering ordinance after Morales, as discussed above. The revised Florida loitering law and the revised gang loitering ordinance are still in place as of 2021.
Suspicion: A Closer Look
City of Chicago v. Morales concerned a statute that specifically empowered police to act in particular way—to order persons to disperse. Most criminal statutes don’t explicitly authorize police actions or even mention the police at all, but any criminal statute is nonetheless a source of power for the police. That is because police are generally empowered to stop and arrest persons, or conduct other investigative activities, whenever they have adequate suspicion of criminal activity. In other words, if a statute defines a crime of “knowing conversion” of government property, like the statute that was applied in United States v. Morissette in Chapter Two, then an officer who has legally adequate suspicion of knowing conversion is automatically empowered to stop, question, or arrest the person suspected of this offense. You first encountered this point with Commonwealth v. Copenhaver in Chapter One, but it is sufficiently important to emphasize again: once an act is defined as criminal, state officials have not only the authority to punish that act, but also the authority to police it – to investigate, search, and arrest when the officials suspect that someone has engaged or is going to engage in the proscribed act.
The requisite levels of suspicion are defined primarily by constitutional doctrine. The Fourth Amendment prohibits “unreasonable searches and seizures,” and this language is the basis of the constitutional framework to evaluate police stops, searches, arrests, and other investigative activities. In the course of interpreting the Fourth Amendment, the Supreme Court has determined that a reasonable search or seizure is one that is based on “reasonable suspicion” of criminal activity or “probable cause” to believe that a crime has occurred.
“Reasonable suspicion” and “probable cause” are notoriously ambiguous concepts, but each of these legal standards generally requires an officer to identify some attribute of the individual person or place that led the officer to suspect criminal activity. An officer can establish reasonable suspicion by noting that the individual matched a description of a specific suspect, for example, or was behaving in a manner known to the officer to be characteristic of persons engaged in narcotics trafficking. Officers are empowered to stop and question an individual whenever they have “reasonable suspicion,” but a full arrest requires “probable cause.” The Supreme Court has said very little about the distinction between reasonable suspicion and probable cause, other than to indicate that probable cause is a slightly higher threshold than reasonable suspicion. But either standard is relatively easy for officers to satisfy. A record-keeping form used by the New York Police Department, UF-250, is reproduced below to give you an idea of the kinds of observations police frequently invoke to establish reasonable suspicion. For example, the UF-250 form identifies as possible reasons for a stop, “furtive movements,” “wearing clothing/disguises commonly used in commission of crime,” “area has high incidence of reported offense of type under investigation,” and “changing direction at sight of officer / flight.”
Given that reasonable suspicion and probable cause are low thresholds, police officers will have the legal authority to stop, question, or arrest many more individuals than they can actually pursue. That means that officers must choose when, given the presence of reasonable suspicion or probable cause, they will actually initiate an investigation. What factors influence this choice? How do officers decide which persons merit a stop or arrest, and which ones can be ignored? Police officers are not necessarily motivated by the same goals as prosecutors. Prosecutors are typically more focused on securing convictions than police officers are. Officers may have more immediate aims, such as to resolve a present conflict, to preserve order, or to protect their own authority. They may make an arrest without necessarily expecting a conviction to be the ultimate result.
The UF-250 form presented above provides one source of insight into police decisionmaking. Over the course of litigation against the New York Police Department, advocates and social scientists analyzed extensive data concerning millions of police stops, including details of the factors cited by police as giving rise to suspicion. The analysis suggested that, especially when pressured by commanders to maximize the number of people stopped, officers followed certain “scripts” to rationalize stops based on very little information about the individual who is stopped. Over time, officers identified “evasive / furtive movements” and “high crime area” with increasing frequency as reasons for stops. See Jeffrey Fagan & Amanda Geller, Following the Script: Narratives of Suspicion in Terry Stops in Street Policing, 82 U. Chi. L. Rev. 51 (2015).
The UF-250 form tracks other information beyond the basis of suspicion, such as the race of the person stopped, whether the police used force, whether the police did find a weapon or other contraband. By analyzing records of millions of stops, litigants were able to establish that police stopped Black and Latino persons, and used force against them, disproportionately often in relation to the overall population of these groups in New York City. But the police were actually slightly more likely to find weapons or other contraband when they stopped white persons (perhaps because stops of white persons were based on more careful determinations of suspicion). See Floyd v. City of New York, 959 F. Supp. 2d 540, 558-559 (S.D.N.Y. 2013). The Floyd court found that “blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites,” id. at 560, and the court found NYPD’s stop-and-frisk practices to violate both the Fourth and Fourteenth Amendments.
The data discussed by the Floyd court is consistent with broader empirical data discussed in Chapter One: persons of color (especially Black persons) are subject to criminal interventions, including stops and arrests, disproportionately often. According to the U.S. Supreme Court, the Fourth Amendment does not prohibit police from using race as a relevant factor in selecting among persons to stop or arrest (so long as the police can satisfy the reasonable suspicion or probable cause standards), but other provisions of the federal constitution may prohibit race-based enforcement choices. The last section of this chapter considers equal protection doctrine and its application to both policing and prosecutorial choices.
You will have the opportunity to study Fourth Amendment law in much more detail in an upper-level course on constitutional criminal procedure. For purposes of this first-year course, you need not worry about the nuances of either of the Fourth Amendment suspicion thresholds mentioned above, “probable cause” or “reasonable suspicion.” It is enough to know that once an officer does have the requisite suspicion that a person is engaging in, or has engaged in, a crime, the officer is then empowered to investigate further. And because the Fourth Amendment suspicion thresholds are low, officers usually have the opportunity, and indeed the necessity, to select some individuals for further investigation and let others go.
There is thus some tension between Fourth Amendment doctrine, which grants police broad discretion, and the void-for-vagueness doctrine as presented by the plurality in Chicago v. Morales. Justice Thomas noted this tension in his Morales dissent, arguing that we should simply embrace police discretion in both contexts: “Just as we trust officers to rely on their experience and expertise to make spur-of-the-moment determinations about amorphous legal standards such as ‘probable cause’ and ‘reasonable suspicion,’ so we must trust them to determine whether a group of loiterers contains individuals (in this case members of criminal street gangs) whom the city has determined threaten the public peace.” City of Chicago v. Morales, 527 U.S. 41, 109-110 (1999) (Thomas, J., dissenting). One scholar has argued that “vagueness doctrine is best seen as an adjunct to Fourth Amendment law, not as a serious check on crime definition.” William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv. L. Rev. 780, 790 n. 54 (2006).
Prosecutorial Decisions
Basic Requirements
It is a prosecutor, not a police officer, who decides whether a person suspected of criminal activity, or even arrested for it, will ultimately be formally charged with a crime. Charging decisions include choices such as whether a given person will be charged at all; which offense or offenses will be charged; whether charges will later be dropped or added. Prosecutors typically have the power to make these decisions with relatively few constraints. A victim or a police officer may file a complaint alleging the commission of a crime, but even then, it is usually the prosecutor who decides whether to file formal charges. In most U.S. jurisdictions, the minimum threshold for a formal charge is again “probable cause” – a prosecutor should not bring charges if the evidence does not establish “probable cause” to believe the defendant is guilty. As in the context of police decisions, probable cause is a difficult-to-define term that does not express a specific probability that the defendant is guilty. A typical explanation of probable cause is that it requires “a reasonable ground for belief in guilt.” Later in this book, we will consider some cases in which courts evaluate whether sufficient evidence exists to establish probable cause for a specific charge. But to emphasize: once the probable cause threshold is crossed, whether to bring charges at all, and which charges to bring, is a matter of prosecutorial discretion.
The prosecutor’s charging decision is usually recorded in a charging document, which could be called an information, a complaint, or an indictment. Depending on the jurisdiction, the prosecutor may be able to initiate charges at his or her sole discretion, or he or she may need to obtain an indictment from a grand jury—a group of jurors who hear the prosecution’s statement of evidence (but usually not any evidence from the defense) and who then determine whether there is sufficient probable cause to proceed with the charges. We saw the text of an indictment in Commonwealth v. Mochan, the very first case we read in Chapter One. In Mochan, the defendant was prosecuted under Pennsylvania common law rather than a specific statute. Today, since common law crimes have been abolished in most jurisdictions, an indictment will generally refer to a specific statute or statutes. For one example, you can find the text of the indictment in United States v. Morissette in Chapter Two. An indictment should allege all the specific elements of the charged offense; otherwise, a court may find it “deficient” and dismiss the charges. But an indictment is not itself evidence; it states the allegations against the defendant but does not prove them.
Charging decisions are often revisited or revised over the course of a criminal case. For example, a prosecutor may file an indictment, then later file a superseding indictment that adds new charges. And plea negotiations with the defense will often involve agreements to drop or reduce charges in exchange for a guilty plea. Overlapping statutes, previously mentioned in Chapter Two, are especially useful to prosecutors in this context. If there are multiple statutes that could plausibly be applied to a defendant’s conduct, the prosecutor may be able to threaten multiple convictions and a more severe penalty, then offer reduced charges and a less severe sentence in exchange for a guilty plea. We will consider this aspect of prosecutorial discretion in more detail later in this chapter.
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Discretion Not to Prosecute
The previous section identified the basic requirements a prosecutor must fulfill in order to bring a charge. But what if a prosecutor decides not to bring any criminal charges? Do prosecutors have a duty to bring charges if they know of facts that indicate the violation of a criminal law?
INMATES OF ATTICA CORRECTIONAL FACILITY et al., Plaintiffs-Appellants
v.
Nelson A. ROCKEFELLER et al., Defendants-Appellees
U.S. Court of Appeals, Second Circuit
477 F.2d 375
Decided April 18, 1973
MANSFIELD, Circuit Judge:
…Plaintiffs … [include] certain present and former inmates of New York State’s Attica Correctional Facility (“Attica”) [and] the mother of an inmate who was killed…. The complaint alleges that before, during, and after the prisoner revolt at and subsequent recapture of Attica in September 1971, which resulted in the killing of 32 inmates and the wounding of many others, the defendants, including the Governor of New York [and various other state] officials, either committed, conspired to commit, or aided and abetted in the commission of various crimes against the complaining inmates and members of the class they seek to represent. It is charged that the inmates were intentionally subjected to cruel and inhuman treatment prior to the inmate riot, that State Police, Troopers, and Correction Officers … intentionally killed some of the inmate victims without provocation during the recovery of Attica, that state officers (several of whom are named and whom the inmates claim they can identify) assaulted and beat prisoners after the prison had been successfully retaken and the prisoners had surrendered, that personal property of the inmates was thereafter stolen or destroyed, and that medical assistance was maliciously denied to over 400 inmates wounded during the recovery of the prison.
The complaint further alleges that Robert E. Fischer, a Deputy State Attorney General specially appointed by the Governor … to investigate crimes relating to the inmates’ takeover of Attica and the resumption of control by the state authorities, “has not investigated, nor does he intend to investigate, any crimes committed by state officers.” Plaintiffs claim, moreover, that because Fischer was appointed by the Governor he cannot neutrally investigate the responsibility of the Governor and other state officers said to have conspired to commit the crimes alleged. It is also asserted that since Fischer is the sole state official currently authorized under state law to prosecute the offenses allegedly committed by the state officers, no one in the State of New York is investigating or prosecuting them.
With respect to the sole federal defendant, the United States Attorney for the Western District of New York, the complaint simply alleges that he has not arrested, investigated, or instituted prosecutions against any of the state officers accused of criminal violation of plaintiffs’ federal civil rights….
As a remedy for the asserted failure of the defendants to prosecute violations of state and federal criminal laws, plaintiffs request relief in the nature of mandamus (1) against state officials, requiring the State of New York to submit a plan for the independent and impartial investigation and prosecution of the offenses charged against the named and unknown state officers, and insuring the appointment of an impartial state prosecutor and state judge to “prosecute the defendants forthwith,” and (2) against the United States Attorney, requiring him to investigate, arrest and prosecute the same state officers for having committed [federal civil rights] offenses….
(1) Claim Against the United States Attorney
With respect to the defendant United States Attorney, plaintiffs seek mandamus to compel him to investigate and institute prosecutions against state officers, most of whom are not identified, for alleged violations of [federal law]. Federal mandamus is, of course, available only “to compel an officer or employee of the United States . . . to perform a duty owed to the plaintiff.” …[O]rdinarily the courts are “not to direct or influence the exercise of discretion of the officer or agency in the making of the decision.” More particularly, federal courts have traditionally and, to our knowledge, uniformly refrained from overturning, at the instance of a private person, discretionary decisions of federal prosecuting authorities not to prosecute persons regarding whom a complaint of criminal conduct is made.
This judicial reluctance to direct federal prosecutions at the instance of a private party asserting the failure of United States officials to prosecute alleged criminal violations has been applied even in cases such as the present one where, according to the allegations of the complaint, which we must accept as true for purposes of this appeal, serious questions are raised as to the protection of the civil rights and physical security of a definable class of victims of crime and as to the fair administration of the criminal justice system.
The primary ground upon which this traditional judicial aversion to compelling prosecutions has been based is the separation of powers doctrine. “Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.”
Although … this broad view [has been criticized as] unsound and incompatible with the normal function of the judiciary in reviewing for abuse or arbitrariness administrative acts that fall within the discretion of executive officers, … the manifold imponderables which enter into the prosecutor’s decision to prosecute or not to prosecute make the choice not readily amenable to judicial supervision.
In the absence of statutorily defined standards governing reviewability, or regulatory or statutory policies of prosecution, the problems inherent in the task of supervising prosecutorial decisions do not lend themselves to resolution by the judiciary. The reviewing courts would be placed in the undesirable and injudicious posture of becoming “superprosecutors.” In the normal case of review of executive acts of discretion, the administrative record is open, public and reviewable on the basis of what it contains. The decision not to prosecute, on the other hand, may be based upon the insufficiency of the available evidence, in which event the secrecy of the grand jury and of the prosecutor’s file may serve to protect the accused’s reputation from public damage based upon insufficient, improper, or even malicious charges. In camera review would not be meaningful without access by the complaining party to the evidence before the grand jury or U.S. Attorney. Such interference with the normal operations of criminal investigations, in turn, based solely upon allegations of criminal conduct, raises serious questions of potential abuse by persons seeking to have other persons prosecuted. Any person, merely by filing a complaint containing allegations in general terms (permitted by the Federal Rules) of unlawful failure to prosecute, could gain access to the prosecutor’s file and the grand jury’s minutes, notwithstanding the secrecy normally attaching to the latter by law.
Nor is it clear what the judiciary’s role of supervision should be…. At what point would the prosecutor be entitled to call a halt to further investigation as unlikely to be productive? What evidentiary standard would be used to decide whether prosecution should be compelled? How much judgment would the United States Attorney be allowed? Would he be permitted to limit himself to a strong “test” case rather than pursue weaker cases? … What sort of review should be available in cases like the present one where the conduct complained of allegedly violates state as well as federal laws? With limited personnel and facilities at his disposal, what priority would the prosecutor be required to give to cases in which investigation or prosecution was directed by the court?
These difficult questions engender serious doubts as to the judiciary’s capacity to review and as to the problem of arbitrariness inherent in any judicial decision to order prosecution. On balance, we believe that substitution of a court’s decision to compel prosecution for the U.S. Attorney’s decision not to prosecute, even upon an abuse of discretion standard of review and even if limited to directing that a prosecution be undertaken in good faith, … would be unwise.
Plaintiffs urge, however, that Congress withdrew the normal prosecutorial discretion for the kind of conduct alleged here by providing … that the United States Attorneys are “authorized and required . . . to institute prosecutions against all persons violating any of the provisions of 18 U.S.C. §§ 241, 242” (emphasis supplied), and, therefore, that no barrier to a judicial directive to institute prosecutions remains. This contention must be rejected. The mandatory nature of the word “required” … is insufficient to evince a broad Congressional purpose to bar the exercise of executive discretion in the prosecution of federal civil rights crimes. Similar mandatory language is contained in [various other federal statutes].
Such language has never been thought to preclude the exercise of prosecutorial discretion. Indeed the same contention made here was specifically rejected in Moses v. Kennedy, 219 F. Supp. 762 (D.D.C. 1963), where seven black residents and one white resident of Mississippi sought mandamus to compel the Attorney General of the United States and the Director of the F.B.I. to investigate, arrest, and prosecute certain individuals, including state and local law enforcement officers, for willfully depriving the plaintiffs of their civil rights. There the Court noted that “considerations of judgment and discretion apply with special strength to the area of civil rights, where the Executive Department must be largely free to exercise its considered judgment on questions of whether to proceed by means of prosecution, injunction, varying forms of persuasion, or other types of action.”
… It therefore becomes unnecessary to decide whether, if Congress were by explicit direction and guidelines to remove all prosecutorial discretion with respect to certain crimes or in certain circumstances we would properly direct that a prosecution be undertaken.
(2) Claims Against the State Officials
With respect to the state defendants, plaintiffs also seek prosecution of named and unknown persons for the violation of state crimes. However, they have pointed to no statutory language even arguably creating any mandatory duty upon the state officials to bring such prosecutions. To the contrary, New York law reposes in its prosecutors a discretion to decide whether or not to prosecute in a given case, which is not subject to review in the state courts….
Plaintiffs point to language in our earlier opinion, Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 20 (2d Cir. 1971), to the effect that “the State has the duty to investigate and prosecute all persons, including inmates, who may have engaged in criminal conduct before, during and after the uprising.” But the statement does not support their present demands. The existence of such a duty does not define its dimensions or imply that an alleged failure to perform the duty completely or equally, as between inmates and state officials, will support federal judicial supervision of state criminal prosecutions. The serious charge that the state’s investigation is proceeding against inmates but not against state officers, if shown to be accurate, might lead the Governor to supplement or replace those presently in charge of the investigation or the state legislature to act. But the gravity of the allegation does not reduce the inherent judicial incapacity to supervise.
The only authority supporting the extraordinary relief requested here is the Seventh Circuit’s recent decision in Littleton v. Berbling, 468 F.2d 389 (1972), cert. granted, 411 U.S. 915 (1973). There a class of black citizens of Cairo, Illinois, brought suit for damages and injunctive relief against a state prosecutor, an investigator for him, a magistrate and a state judge, charging that the defendants had “systematically applied the state criminal laws so as to discriminate against plaintiffs and their class on the basis of race, interfering thereby with the free exercise of their constitutional rights.” They alleged a long history indicating a concerted pattern of officially sponsored racial discrimination. In reversing the district court’s dismissal of the complaint, a divided panel concluded that a state judge … may be enjoined from unconstitutionally fixing bails and imposing sentences that discriminated sharply against black persons, and that the State Attorney’s quasi-judicial immunity from suit for damages when performing his prosecutorial function “does not extend to complete freedom from injunction.” Finding other possible remedies either unavailable or ineffective, the Court approved the possibility of some type of injunctive relief, not fully specified, but which might include a requirement of “periodic reports of various types of aggregate data on actions on bail and sentencing and dispositions of complaints.”
However, the decision in Littleton is clearly distinguishable. There the claim, unlike that here, alleged a systematic and lengthy course of egregious racial discrimination in which black persons were denied equal access to and treatment by the state criminal justice system. Furthermore, the Court’s decision does not appear to have compelled the institution of criminal prosecutions, which is the principal relief sought here. In short, we believe that Littleton should be strictly limited to its peculiar facts, as apparently did the Court itself. To the extent that it may be construed as approving federal judicial review and supervision of the exercise of prosecutorial discretion and as compelling the institution of criminal proceedings, we do not share such an extension of its views.
The order of the district court [dismissing the complaint] is affirmed.
Notes and questions on Inmates of Attica
1. The Second Circuit opinion refers to “the prisoner revolt … and subsequent recapture” of the Attica prison, but doesn’t otherwise provide many details of the events that gave rise to this case. The Attica revolt, or uprising, is the subject of historian Heather Ann Thompson’s Blood in the Water (2016) (also a Pulitzer-Prize-winning book, like Douglas Blackmon’s Slavery by Another Name, which was mentioned above in the discussion of vagrancy). Here’s the publisher’s blurb, reprinted on the Pulitzer website:
On September 9, 1971, nearly 1,300 prisoners took over the Attica Correctional Facility in upstate New York to protest years of mistreatment. Holding guards and civilian employees hostage, the prisoners negotiated with officials for improved conditions during the four long days and nights that followed.
On September 13, the state abruptly sent hundreds of heavily armed troopers and correction officers to retake the prison by force. Their gunfire killed thirty-nine men—hostages as well as prisoners—and severely wounded more than one hundred others. In the ensuing hours, weeks, and months, troopers and officers brutally retaliated against the prisoners. And, ultimately, New York State authorities prosecuted only the prisoners, never once bringing charges against the officials involved in the retaking and its aftermath and neglecting to provide support to the survivors and the families of the men who had been killed.
Thompson’s book argues that there existed considerable evidence that prison officials committed murder and other crimes after regaining control of the prison.
2. Notice that the prisoners were the plaintiffs in this case, not the defendants. Unlike most of the appellate opinions included in this book, Inmates of Atticawas not an appeal from a criminal conviction. Instead, persons who were incarcerated at the Attica prison sued to try to force federal and state prosecutors to bring criminal charges against various prison employees and state officials. The federal appeals court declined to order prosecutors to bring charges, emphasizing the separation of powers. Although prosecutors are “officers of the court,” as the Second Circuit recognizes, they are also executive branch officials. In this case and in many other contexts, courts decline to review prosecutorial decisions on the grounds that it would be improper for the judiciary to interfere in executive decision-making. Of course, American courts do review the decisions of other branches quite frequently: for example, they review legislation to determine if it complies with constitutional requirements, as you saw in City of Chicago v. Moralesin this chapter, and in Lambertin the previous chapter. Is there something distinctive about prosecutorial decisions that makes them less suitable for judicial review than other government decisions?
3. As the prisoner-plaintiffs in Attica emphasized, one of the applicable federal criminal statutes included seemingly mandatory language: federal prosecutors were “authorized and required to institute prosecutions” against violators. The Second Circuit acknowledged the language, but found it “insufficient to evince a broad Congressional purpose to bar the exercise of executive discretion.” Recall a similar dynamic in Morales, above, where the plurality found it implausible that the word “shall” in the Chicago ordinance removed police discretion not to invoke the statute. In Castle Rock v. Gonzales, 545 U.S. 748 (2005), the U.S. Supreme Court determined that a seemingly mandatory domestic violence restraining order, which included directions that officers should “use every reasonable means to enforce” it, did not overcome the usual rule of police discretion. Thus, for both police and prosecutors, the general rule is that the decision to enforce is discretionary; police may decline to arrest and prosecutors may decline to charge.
4. This chapter focuses on enforcement decisions; the previous chapter examined criminalization decisions. Notice that the two types of decisions can overlap in some circumstances. If a prosecutor choses not to enforce a statute against one specific individual, we might still think of the conduct defined in that statute as criminalized conduct. But if a prosecutor announces that he or she will never enforce a particular criminal statute, the conduct in that statute has become effectively decriminalized. “Categorical nonenforcement” has captured attention, and generated controversy, in recent years. President Obama’s immigration policy included some categorical nonenforcement decisions to protect certain groups such as “Dreamers,” or persons who arrived in the United States as children without legal authorization. More recently, at the state and local level, some prosecutors have announced that they will not enforce certain offenses, such as possession of small amounts of marijuana for recreational use, or gun possession laws that the prosecutor believes to violate the Second Amendment. Critics of these nonenforcement decisions argue that they violate the obligation of the executive branch to “Take Care that the Laws be faithfully executed” (U.S. Const., Art. II). For a discussion of the recent controversies and an argument in favor of nonenforcement policies in some instances, see Kerrel Murray, Populist Prosecutorial Nullification, 96 N.Y.U. L. Rev. 173 (2021). For an argument that nonenforcement policies (but not decisions not to enforce in an individual case) should be subject to judicial review, see Zachary Price, Law Enforcement as Political Question, 91 Notre Dame L. Rev. 1571 (2016).
5. Executive discretion not to prosecute has drawn controversy in recent years, but you should not assume that prosecutors always exercise their discretion in the direction of more leniency. The Trump administration ended some of President Obama’s nonenforcement policies and sought increased prosecutions of immigration offenses. It is crucial to see that changes in executive policy can lead to major changes in what is prosecuted and punished – without any legislative change at all. Again, criminalization is a decision to be made by the legislature in the first instance, but executive choices can certainly influence what kinds of conduct are actually treated as criminal.
Discretion Among Offenses
You have seen so far that prosecutors can initiate charges so long as they have probable cause to believe an offense has occurred. And you have seen that prosecutors also have discretion not to charge an offense even if they have probable cause – or indeed, a much greater level of certainty – that the offense has taken place. In this section, we consider a third aspect of prosecutorial discretion: the discretion to choose which statute to use to charge a given defendant. State v. Cissell, below, considers two Wisconsin statutes that criminalize the same conduct, but impose different penalties. The first statute defines a felony, or a crime with a possible punishment of more than one year in prison. The second statute establishes a misdemeanor offense, or an offense with a maximum punishment of one year or less.
Wisconsin Statutes § 52.05 Abandonment; uniform act. (1) Any person who deserts or wilfully neglects or refuses to provide for the support and maintenance of his or her spouse or marital or nonmarital child under 18 years in destitute or necessitous circumstances shall be fined not more than \$500 or imprisoned not more than 2 years or both. It is a defense to criminal liability that the person has just cause to desert, wilfully neglect or refuse to provide support and maintenance…
§52.055 Failure to support. (1) Any parent who intentionally neglects or refuses to provide for the necessary and adequate support of his or her marital or nonmarital child under 18 years, or any person who, without just cause, intentionally neglects or refuses to provide for the necessary and adequate maintenance of his or her spouse, shall be guilty of a misdemeanor and may be fined not more than \$100 or imprisoned not more than 3 months in the county jail or both…
STATE of Wisconsin, Plaintiff-Appellant-Petitioner
v.
Ronnie D. CISSELL, Defendant-Respondent
Supreme Court of Wisconsin
127 Wis.2d 205
Opinion Filed Dec. 23, 1985
STEINMETZ, Justice.
The issues of the case are:
(1) Whether the elements of the crime of felony abandonment are identical to the elements of the crime of misdeameanor failure to support.
(2) If the elements of felony abandonment are identical to the elements of misdemeanor failure to support, does the state violate a defendant’s right to equal protection or due process by charging him with the felony instead of the misdemeanor….
Although we conclude that the elements of the two crimes are identical, we hold that there is no constitutional infirmity in the felony abandonment statute.
On March 2, 1979, a court liaison worker for the Milwaukee County Department of Social Services signed a criminal complaint charging the defendant, Ronnie D. Cissell, with intentionally and willfully neglecting to provide for the support and maintenance of his minor child, leaving her in destitute and necessitous circumstances, contrary to sec. 52.05(1).
The complaint alleged that the defendant had not paid any money for his child’s support from 1973 through 1979, and that he had been ordered to make such payments in the amount of \$12,459.33.
[After several pretrial motions], [t]he Milwaukee circuit court, Judge Janine Geske, held that the defendant’s constitutional rights to due process and equal protection of the law were violated by charging him with the felony and ordered that the charge against the defendant be reduced to the misdemeanor of nonsupport. The court based its holding on the conclusion that the elements of the two crimes are identical. The court of appeals … affirmed the circuit court’s decision solely on equal protection grounds.
The first issue we consider is whether the felony abandonment statute has elements that are identical to the misdemeanor nonsupport statute. The circuit court construed the element of “willful” nonsupport under the felony statute to be equivalent to “intentional” nonsupport under the misdemeanor statute. The court also construed “destitute or necessitous circumstances” in the felony to mean any breach of the duty of support. Based on this construction, the need for support under the felony statute does not have to be greater than the need that satisfies the misdemeanor statute.
As a general proposition, the word willful cannot be defined without reference to its use in a specific statute. [But given the interpretations of the terms willful and intentional in prior cases involving other statutes,] [w]e conclude from our analysis that willful has the same meaning in sec. 52.05, as intentionally does in sec. 52.055.
We must next consider whether the phrase “destitute or necessitous circumstances” [in the felony statute] requires a different element of proof than failure to satisfy the duty of support [in the misdemeanor statute]. ….None of our decisions considering the felony abandonment statute has required the state to prove a greater level of deprivation than under the misdemeanor nonsupport statute. We see no difference in the degree of deprivation of the dependents to be proven under the felony or misdemeanor statutes even though the wording is different. Our decisions make it clear that the dependents need not actually be in need of the goods and necessities of life under either statute as long as the defendant is able to provide for them. It is irrelevant if others have provided the support needed for the dependents because the defendant cannot rely on the efforts of others as a valid defense.
Because we construe the willful and destitute or necessitous circumstance requirements of sec. 52.05, to be the same as the elements of sec. 52.055, the two statutes have substantively identical elements.
The defendant contends that statutes with identical substantive elements but different penalty schemes violate due process and equal protection….
We are persuaded by the reasoning of United States v. Batchelder, 442 U.S. 114 (1979), that identical element crimes with different penalties do not violate due process or equal protection. In Batchelder, the United States Supreme Court held that overlapping criminal statutes with different penalty schemes do not violate constitutional principles unless the prosecutor selectively bases the charging decision upon an unjustifiable standard such as race, religion, or other arbitrary classification. This court concludes that the Batchelder reasoning concerning overlapping statutes is equally applicable to identical element crimes.
At issue in Batchelder were two overlapping provisions of the Omnibus Crime Control and Safe Streets Act of 1968. Overlapping statutes proscribe a variety of acts, not all of which are the same, but where some of the proscribed acts are identical. By contrast, identical statutes proscribe the same conduct; they completely overlap. The statutory provisions under consideration in Batchelder both prohibited convicted felons from receiving and possessing firearms shipped in interstate commerce. The statutes were not identical, however, because the full ranges of prohibited conduct were not identical. The maximum penalty exposure under the two statutes also differed, even for the identical prohibited conduct. The Supreme Court, therefore, had to determine whether a defendant convicted of the offense carrying the greater penalty may be sentenced only under the more lenient provision when his conduct violates both statutes.
The Supreme Court analyzed the problem of overlapping statutes with different penalties as an issue of prosecutorial discretion. The Court stated that: “This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants.” Under this approach, the fact that the defendant’s conduct may be chargeable under either of two statutes does not make prosecution under one or the other statute improper per se; the focus instead is on whether the prosecutor unjustifiably discriminated against any class of defendants.
In upholding the constitutionality of overlapping statutes with different penalties, the Supreme Court rejected three specific arguments against the validity of such statutes. The Court considered whether overlapping statutes might: (1) be void for vagueness; (2) implicate due process and equal protection interests in avoiding excessive prosecutorial discretion and in obtaining equal justice; and (3) constitute an impermissible delegation of legislative authority.
The Supreme Court decided that overlapping statutes are not vague merely because they impose different penalties…. “Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments.” …
The Supreme Court also rejected the argument that overlapping criminal statutes create unfettered prosecutorial discretion. “More importantly, there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements… The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause….”
Finally, the Batchelder decision dismissed the argument that overlapping statutes impermissibly delegate to prosecutors the legislative responsibility to fix criminal penalties. The Supreme Court noted that the legislature fixed the penalty under each statute and, therefore, the prosecutor’s control over the penalty exposure was not greater than in other charging situations where conduct could be prosecuted under either of two statutes with different penalties….
The fact that the statutes under consideration in Batchelder were [overlapping rather than exactly identical] was not decisive. Instead, the fact that the statutes were identical at the point of overlap and as applied to the facts of that case was decisive…. Overlapping statutes thus present the same issues as identical statutes because the point of overlap essentially creates an identical statute situation….
Our conclusion that Batchelder controls in the identical statute situation is consistent with the recent decisions of other jurisdictions….
The statutes involved [here] do not classify which persons should be charged under the felony statute and which under the misdemeanor statute. Differences in treatment between individuals, therefore, are determined as a matter of prosecutorial discretion. As Batchelder recognizes, such discretion is not unconstitutional unless the prosecutor discriminates on the basis of unjustifiable criteria. Here, the defendant makes no claim of impermissible discrimination and we can readily see legitimate bases for exercising prosecutorial discretion. For example, prosecutors reasonably may make their charging decision on the basis of the length of continuous nonsupport and the amount of money owed.
… Finally, although Batchelder technically is decisive on the identical crimes issue only under the federal constitution, we are persuaded that the same reasoning should control under the Wisconsin constitution. We previously have held that the due process and equal protection clauses of our state constitution and the United States Constitution are essentially the same.
… The decision of the court of appeals is reversed and the cause is remanded to the trial court for further proceedings.
SHIRLEY S. ABRAHAMSON, Justice dissenting.
…The majority opinion permits the legislature to adopt two or more criminal statutes identical in every respect except for the penalty provision without establishing criteria to guide the prosecutor in deciding under which statute an accused should be prosecuted. Thus the legislature could, for example, adopt the following three statutes making burglary a crime.
Sec. 943.10. Burglary. Whoever intentionally enters a dwelling without the consent of the person in lawful possession and with the intent to steal shall be fined no more than \$1,000 or imprisoned not more than 3 months in the county jail or both.
Sec. 943.101. Burglary. Whoever intentionally enters a dwelling without the consent of the person in lawful possession and with the intent to steal shall be fined no more than \$3,000 or imprisoned not more than 2 years or both.
Sec. 943.102. Burglary. Whoever intentionally enters a dwelling without the consent of the person in lawful possession and with the intent to steal shall be fined no more than \$10,000 or imprisoned not more than 10 years or both.”
These statutes define the same conduct, under the identical circumstances, as a felony when committed by one person and as a misdemeanor when committed by another. The legislature gives the prosecutor no guidance in selecting the statute under which to prosecute.
It is axiomatic that the state prosecutes people for crimes under statutes enacted by the legislature. “The legislature determines what constitutes a crime in Wisconsin and establishes maximum penalties for each class of crime.”
By establishing more than one maximum penalty for the identical crime the legislature has effectively failed to fix a penalty for the crime of burglary. The legislature has abdicated its responsibility to set a penalty by allowing the prosecutor to determine the maximum penalty for the crime through selecting the statute under which to charge.
… [T]here is a distinction between identical and overlapping statutes that renders Batchelder unpersuasive. In enacting overlapping statutes the legislature defines two or more different crimes and establishes a range of punishments for each. The legislature performs its constitutional task: it sets different penalties for legally distinguishable offenses, even though in some circumstances the same conduct may be punishable under each statute. As a practical matter, the legislature may not be able to define crimes without including conduct that may also be proscribed by another statute. Thus, empowering a prosecutor to choose among overlapping statutes may be necessary and unavoidable.
By contrast, in enacting multiple criminal statutes identical except for the penalty, the legislature defines one crime, establishes several different ranges of punishments for that crime, and, without setting forth guidance, empowers the prosecutor to determine which of the ranges should be imposed in a particular case. The power to fix a range of punishments for a defined crime is the essence of the legislative function. In enacting identical criminal statutes except for the penalty, the legislature has delegated its power to the executive branch without establishing standards for the exercise of the power. This is indeed “delegation running riot.”
… The legislature can, of course, adopt a single statute setting forth the same range of punishments for burglary as the three burglary statutes I described above. Empowering the prosecutor to prosecute under one burglary statute which has a range of punishments is different from empowering the prosecutor to choose among three criminal statutes identical except for penalty. In the former situation, the prosecutor does not establish the penalty; the circuit court imposes a sentence within the legislatively established range according to criteria established by the legislature and this court. The circuit court must set forth its reasons for imposing the sentence, and the judgment is subject to appellate review. Thus the circuit court’s discretion in selecting punishment from a statutory range of penalties established by the legislature is regulated and guided. In the latter situation the circuit court imposes a sentence within the range established by the prosecutor who functions without regulation or guidance by the legislature or the court….
Check Your Understanding (3-3)
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Notes and questions about State v. Cissell
1. Overlapping statutes are a common phenomenon. Most jurisdictions take same approach as Cissell and follow the Supreme Court’s approach in United States v. Batchelder, concluding that overlapping statutes are permissible even under state constitutions. To be clear, Batchelder applies the due process and equal protection clauses of the federal constitution, and the Supreme Court’s interpretation of the federal constitution is binding on state courts. But defendants can also raise claims under the relevant state constitution, and state courts are free to interpret their own constitutions, including any state due process or equal protection clause, differently from the federal constitution. The Cissell court chose to follow the federal approach. But for an example of a state court interpreting its own state constitution to provide more protection than the federal constitution, see People v. Lee, 476 P.3d 351 (Co. 2020), discussed in Chapter Six.
2. Although the Cissell court (like the U.S. Supreme Court, and most American jurisdictions) found overlapping statutes to be permissible, it is important to understand why critics object to such statutes. The arguments against overlapping statutes can help clarify the scope of prosecutorial power. Consider carefully Judge Abrahamson’s dissent in Cissell. Judge Abrahamson argues that the legislature should not be able to enact three burglary statutes with identical elements but different penalties, and yet she acknowledges that a legislature could certainly enact one burglary statute with a range of possible penalties as broad (or broader) as the different penalties in her three imagined statutes. Why does Judge Abrahamson see one statute, with a wide range of possible penalties, as meaningfully different from three statutes, each with a more precise penalty range?
3. Notice that the Cissell opinion is concerned with the choice to charge under one statute rather another, not with actual convictions under multiple statutes for the same conduct. Actual convictions under multiple statutes could potentially violate the Fifth Amendment of the federal constitution, which includes the provision, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The Double Jeopardy Clause, as this provision is known, is a potential constitutional constraint on prosecutorial choices that is separate from the equal protection and due process arguments raised in Cissell. Whether the Double Jeopardy Clause bars multiple punishments depends on whether the punishments are for “the same offense,” and the analysis of that question can be complex. We will not cover double jeopardy doctrine extensively in this course, but we will look at it in a little more detail in Chapter Five.
4. The phenomenon of overlapping (or even identical) statutes is partly a product of the breadth of American criminal codes. So much conduct is criminalized that it is nearly inevitable that some statutes will overlap with another. As one notable illustration of the breadth of American criminal codes, consider this anecdote:
At the federal prosecutor’s office in the Southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity—say, Mother Theresa or John Lennon.
It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you’d see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like “false statements” (a felony, up to five years), “obstructing the mails” (five years), or “false pretenses on the high seas” (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: “prison time.”
Tim Wu, Introduction: American Lawbreaking, Slate (Oct. 14, 2007). “False statements” is not really an obscure offense; it’s fairly frequently prosecuted, and it was the offense that sent Martha Stewart to federal prison. But otherwise, Professor Wu’s story captures the sense in which American criminal codes function as menus for prosecutors: for any individual who attracts a prosecutor’s attention, there is likely to be some offense that might be plausibly charged against that person. And given overlapping statutes, there may well be more than one possible charge. The potential applicability of multiple statutes gives a prosecutor leverage in plea negotiations, as discussed more in the next chapter.
5. Cissell is included in this chapter primarily to help you understand the range of decisions open to prosecutors. Most state courts take the same approach, seeing no constitutional problem when prosecutors have broad leeway to choose among statutes that punish the same conduct, but impose different penalties. But this case, like most in the book, can also help you build upon and further develop your understanding of several different aspects of criminal law. Cissell also involved issues of statutory interpretation, and the defendant raised a vagueness challenge to the felony statute. The defendant argued that “willful” meant intentional and “neglect” referred to negligence, and thus the phrase “willfully neglects” in the felony statute was nonsensical because intentional conduct cannot also be negligent conduct. In a passage of the opinion not included above, the Wisconsin court rejected the defendant’s interpretation of the word neglect and thus rejected the vagueness challenge. Although the vagueness challenge failed here, it is important to see that overlapping or identical statutes do create many of the same problems that void-for-vagueness doctrine seeks to remedy. Here is one scholar’s recent summary, which echoes much of what you’ve read so far in this chapter:
There are two important features of the modern criminal justice system that create vagueness concerns in the enforcement of non-vague statutes. First, criminal codes have expanded dramatically in modern times. Not only are new statutes enacted to prohibit increasing amounts of behavior, but broadly worded statutes also allow the executive to find some criminal provision into which it can shoehorn any undesirable behavior. And for behavior that should obviously be prohibited, Congress and most state legislatures have enacted a wide array of overlapping criminal statutes with different penalty provisions. These overlapping statutes allow prosecutors to choose from a large “menu” of criminal charges–a defendant may be charged with a crime carrying a harsh sentence or a more lenient one, as the prosecutor sees fit…. Second, courts have largely exempted law enforcement decisionmaking from judicial review. Aside from asking whether a police officer had probable cause to arrest, or whether a prosecutor had probable cause to bring charges, courts will not review arrest, charging, or plea bargaining decisions…. The Supreme Court says that these decisions are committed to the discretion of the executive….
Carissa Byrne Hessick, Vagueness Principles, 48 Ariz. St. L.J. 1137 (2016).
Equal Protection and Other Possible Limitations
UNITED STATES, Petitioner
v.
Christopher Lee ARMSTRONG et al.
Supreme Court of the United States
517 U.S. 456
Decided May 13, 1996
Chief Justice REHNQUIST delivered the opinion of the Court.
In this case, we consider the showing necessary for a defendant to be entitled to discovery on a claim that the prosecuting attorney singled him out for prosecution on the basis of his race. We conclude that respondents failed to satisfy the threshold showing: They failed to show that the Government declined to prosecute similarly situated suspects of other races.
In April 1992, respondents were indicted in the United States District Court for the Central District of California on charges of conspiring to possess with intent to distribute more than 50 grams of cocaine base (crack) and conspiring to distribute the same, in violation of 21 U.S.C. §§ 841 and 846, and federal firearms offenses. For three months prior to the indictment, agents of the Federal Bureau of Alcohol, Tobacco, and Firearms and the Narcotics Division of the Inglewood, California, Police Department had infiltrated a suspected crack distribution ring by using three confidential informants. On seven separate occasions during this period, the informants had bought a total of 124.3 grams of crack from respondents and witnessed respondents carrying firearms during the sales….
In response to the indictment, respondents filed a motion for discovery or for dismissal of the indictment, alleging that they were selected for federal prosecution because they are black. In support of their motion, they offered only an affidavit by a “Paralegal Specialist,” employed by the Office of the Federal Public Defender representing one of the respondents. The only allegation in the affidavit was that, in every one of the 24 § 841 or § 846 cases closed by the office during 1991, the defendant was black. Accompanying the affidavit was a “study” listing the 24 defendants, their race, whether they were prosecuted for dealing cocaine as well as crack, and the status of each case. [3]
The Government opposed the discovery motion, arguing, among other things, that there was no evidence or allegation “that the Government has acted unfairly or has prosecuted non-black defendants or failed to prosecute them.” The District Court granted the motion. It ordered the Government (1) to provide a list of all cases from the last three years in which the Government charged both cocaine and firearms offenses, (2) to identify the race of the defendants in those cases, (3) to identify what levels of law enforcement were involved in the investigations of those cases, and (4) to explain its criteria for deciding to prosecute those defendants for federal cocaine offenses.
The Government moved for reconsideration of the District Court’s discovery order. With this motion it submitted affidavits and other evidence to explain why it had chosen to prosecute respondents and why respondents’ study did not support the inference that the Government was singling out blacks for cocaine prosecution. The federal and local agents participating in the case alleged in affidavits that race played no role in their investigation. An Assistant United States Attorney explained in an affidavit that the decision to prosecute met the general criteria for prosecution, [including the quantity of drugs involved, multiple defendants indicating a distribution ring, firearms violations, strong overall evidence including audio and videotapes, and] “several of the defendants had criminal histories including narcotics and firearms violations.”
The Government also submitted sections of a published 1989 Drug Enforcement Administration report which concluded that “[l]arge-scale, interstate trafficking networks controlled by Jamaicans, Haitians and Black street gangs dominate the manufacture and distribution of crack.”
In response, one of respondents’ attorneys submitted an affidavit alleging that an intake coordinator at a drug treatment center had told her that there are “an equal number of caucasian users and dealers to minority users and dealers.” Respondents also submitted an affidavit from a criminal defense attorney alleging that in his experience many nonblacks are prosecuted in state court for crack offenses, and a newspaper article reporting that federal “crack criminals … are being punished far more severely than if they had been caught with powder cocaine, and almost every single one of them is black,” Newton, Harsher Crack Sentences Criticized as Racial Inequity, Los Angeles Times, Nov. 23, 1992, p. 1.
The District Court denied the motion for reconsideration. When the Government indicated it would not comply with the court’s discovery order, the court dismissed the case.
A divided three-judge panel of the Court of Appeals for the Ninth Circuit reversed, [but subsequently] the en banc panel affirmed the District Court’s order of dismissal, holding that “a defendant is not required to demonstrate that the government has failed to prosecute others who are similarly situated.” We granted certiorari to determine the appropriate standard for discovery for a selective-prosecution claim.
… A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. Our cases delineating the necessary elements to prove a claim of selective prosecution have taken great pains to explain that the standard is a demanding one.
A selective-prosecution claim asks a court to exercise judicial power over a “special province” of the Executive. The Attorney General and United States Attorneys retain “broad discretion” to enforce the Nation’s criminal laws. They have this latitude because they are designated by statute as the President’s delegates to help him discharge his constitutional responsibility to “take Care that the Laws be faithfully executed.” U.S. Const., Art. II, § 3; see 28 U.S.C. §§ 516, 547. As a result, “[t]he presumption of regularity supports” their prosecutorial decisions and, “in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” In the ordinary case, “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357 (1978).
Of course, a prosecutor’s discretion is “subject to constitutional constraints.” One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, is that the decision whether to prosecute may not be based on “an unjustifiable standard such as race, religion, or other arbitrary classification.” A defendant may demonstrate that the administration of a criminal law is “directed so exclusively against a particular class of persons … with a mind so unequal and oppressive” that the system of prosecution amounts to “a practical denial” of equal protection of the law. Yick Wo v. Hopkins, 118 U.S. 356 (1886).
In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present “clear evidence to the contrary.” …[C]ourts are “properly hesitant to examine the decision whether to prosecute.” Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. “Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.” It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. “Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy.”
The requirements for a selective-prosecution claim draw on “ordinary equal protection standards.” The claimant must demonstrate that the federal prosecutorial policy “had a discriminatory effect and that it was motivated by a discriminatory purpose.” To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted. This requirement has been established in our case law since Ah Sin v. Wittman, 198 U.S. 500 (1905). Ah Sin, a subject of China, petitioned a California state court for a writ of habeas corpus, seeking discharge from imprisonment under a San Francisco County ordinance prohibiting persons from setting up gambling tables in rooms barricaded to stop police from entering. He alleged in his habeas petition “that the ordinance is enforced ‘solely and exclusively against persons of the Chinese race and not otherwise.’ ” We rejected his contention that this averment made out a claim under the Equal Protection Clause, because it did not allege “that the conditions and practices to which the ordinance was directed did not exist exclusively among the Chinese, or that there were other offenders against the ordinance than the Chinese as to whom it was not enforced.”
The similarly situated requirement does not make a selective-prosecution claim impossible to prove. Twenty years before Ah Sin, we invalidated an ordinance, also adopted by San Francisco, that prohibited the operation of laundries in wooden buildings. Yick Wo. The plaintiff in error successfully demonstrated that the ordinance was applied against Chinese nationals but not against other laundry-shop operators. The authorities had denied the applications of 200 Chinese subjects for permits to operate shops in wooden buildings, but granted the applications of 80 individuals who were not Chinese subjects to operate laundries in wooden buildings “under similar conditions.” We explained in Ah Sin why the similarly situated requirement is necessary:
“… There should be certainty to every intent. Plaintiff in error seeks to set aside a criminal law of the State, not on the ground that it is unconstitutional on its face, not that it is discriminatory in tendency and ultimate actual operation as the ordinance was which was passed on in the Yick Wo case, but that it was made so by the manner of its administration. This is a matter of proof, and no fact should be omitted to make it out completely, when the power of a Federal court is invoked to interfere with the course of criminal justice of a State.” 198 U.S. at 508 (emphasis added).
… Having reviewed the requirements to prove a selective-prosecution claim, we turn to the showing necessary to obtain discovery in support of such a claim. If discovery is ordered, the Government must assemble from its own files documents which might corroborate or refute the defendant’s claim. Discovery thus imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution. It will divert prosecutors’ resources and may disclose the Government’s prosecutorial strategy. The justifications for a rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous standard for discovery in aid of such a claim.
The parties, and the Courts of Appeals which have considered the requisite showing to establish entitlement to discovery, describe this showing with a variety of phrases, like “colorable basis,” “substantial threshold showing,” “substantial and concrete basis,” or “reasonable likelihood.” However, the many labels for this showing conceal the degree of consensus about the evidence necessary to meet it. The Courts of Appeals “require some evidence tending to show the existence of the essential elements of the defense,” discriminatory effect and discriminatory intent.
In this case … [the] Court of Appeals held that a defendant may establish a colorable basis for discriminatory effect without evidence that the Government has failed to prosecute others who are similarly situated to the defendant. We think it was mistaken in this view. The vast majority of the Courts of Appeals require the defendant to produce some evidence that similarly situated defendants of other races could have been prosecuted, but were not, and this requirement is consistent with our equal protection case law.
The Court of Appeals reached its decision in part because it started “with the presumption that people of all races commit all types of crimes—not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group.” It cited no authority for this proposition, which seems contradicted by the most recent statistics of the United States Sentencing Commission. Those statistics show: More than 90% of the persons sentenced in 1994 for crack cocaine trafficking were black, United States Sentencing Comm’n, 1994 Annual Report 107 (Table 45); 93.4% of convicted LSD dealers were white, ibid.; and 91% of those convicted for pornography or prostitution were white, id., at 41 (Table 13). Presumptions at war with presumably reliable statistics have no proper place in the analysis of this issue.
… In the present case, if the claim of selective prosecution were well founded, it should not have been an insuperable task to prove that persons of other races were being treated differently than respondents. For instance, respondents could have investigated whether similarly situated persons of other races were prosecuted by the State of California and were known to federal law enforcement officers, but were not prosecuted in federal court. We think the required threshold—a credible showing of different treatment of similarly situated persons—adequately balances the Government’s interest in vigorous prosecution and the defendant’s interest in avoiding selective prosecution.
In the case before us, respondents’ “study” did not constitute “some evidence tending to show the existence of the essential elements of” a selective-prosecution claim. The study failed to identify individuals who were not black and could have been prosecuted for the offenses for which respondents were charged, but were not so prosecuted. This omission was not remedied by respondents’ evidence in opposition to the Government’s motion for reconsideration. The newspaper article, which discussed the discriminatory effect of federal drug sentencing laws, was not relevant to an allegation of discrimination in decisions to prosecute. Respondents’ affidavits, which recounted one attorney’s conversation with a drug treatment center employee and the experience of another attorney defending drug prosecutions in state court, recounted hearsay and reported personal conclusions based on anecdotal evidence. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
[Opinions by Justices SOUTER and GINSBURG, concurring, omitted.]
[Opinion by Justice BREYER, concurring in part and concurring in the judgment, omitted.]
Justice STEVENS, dissenting.
Federal prosecutors are respected members of a respected profession. Despite an occasional misstep, the excellence of their work abundantly justifies the presumption that “they have properly discharged their official duties.” Nevertheless, the possibility that political or racial animosity may infect a decision to institute criminal proceedings cannot be ignored. For that reason, it has long been settled that the prosecutor’s broad discretion to determine when criminal charges should be filed is not completely unbridled. As the Court notes, however, the scope of judicial review of particular exercises of that discretion is not fully defined.
The United States Attorney for the Central District of California is a member and an officer of the bar of that District Court. As such, she has a duty to the judges of that Court to maintain the standards of the profession in the performance of her official functions. If a District Judge has reason to suspect that she, or a member of her staff, has singled out particular defendants for prosecution on the basis of their race, it is surely appropriate for the judge to determine whether there is a factual basis for such a concern…
The Court correctly concludes that in this case the facts presented to the District Court in support of respondents’ claim that they had been singled out for prosecution because of their race were not sufficient to prove that defense. Moreover, I agree with the Court that their showing was not strong enough to give them a right to discovery…. [H]owever, I am persuaded that the District Judge did not abuse her discretion when she concluded that the factual showing was sufficiently disturbing to require some response from the United States Attorney’s Office. Perhaps the discovery order was broader than necessary, but I cannot agree with the Court’s apparent conclusion that no inquiry was permissible.
The District Judge’s order should be evaluated in light of three circumstances that underscore the need for judicial vigilance over certain types of drug prosecutions. First, the Anti–Drug Abuse Act of 1986 and subsequent legislation established a regime of extremely high penalties for the possession and distribution of so-called “crack” cocaine. Those provisions treat one gram of crack as the equivalent of 100 grams of powder cocaine. The distribution of 50 grams of crack is thus punishable by the same mandatory minimum sentence of 10 years in prison that applies to the distribution of 5,000 grams of powder cocaine. The Sentencing Guidelines extend this ratio to penalty levels above the mandatory minimums: For any given quantity of crack, the guideline range is the same as if the offense had involved 100 times that amount in powder cocaine. These penalties result in sentences for crack offenders that average three to eight times longer than sentences for comparable powder offenders.
Second, the disparity between the treatment of crack cocaine and powder cocaine is matched by the disparity between the severity of the punishment imposed by federal law and that imposed by state law for the same conduct. For a variety of reasons, often including the absence of mandatory minimums, the existence of parole, and lower baseline penalties, terms of imprisonment for drug offenses tend to be substantially lower in state systems than in the federal system. The difference is especially marked in the case of crack offenses. The majority of States draw no distinction between types of cocaine in their penalty schemes; of those that do, none has established as stark a differential as the Federal Government. For example, if respondent Hampton is found guilty, his federal sentence might be as long as a mandatory life term. Had he been tried in state court, his sentence could have been as short as 12 years, less worktime credits of half that amount.
Finally, it is undisputed that the brunt of the elevated federal penalties falls heavily on blacks. While 65% of the persons who have used crack are white, in 1993 they represented only 4% of the federal offenders convicted of trafficking in crack. Eighty-eight percent of such defendants were black. During the first 18 months of full guideline implementation, the sentencing disparity between black and white defendants grew from preguideline levels: Blacks on average received sentences over 40% longer than whites. See Bureau of Justice Statistics, Sentencing in the Federal Courts: Does Race Matter? 6–7 (Dec.1993). Those figures represent a major threat to the integrity of federal sentencing reform, whose main purpose was the elimination of disparity (especially racial) in sentencing. The Sentencing Commission acknowledges that the heightened crack penalties are a “primary cause of the growing disparity between sentences for Black and White federal defendants.”
The extraordinary severity of the imposed penalties and the troubling racial patterns of enforcement give rise to a special concern about the fairness of charging practices for crack offenses. Evidence tending to prove that black defendants charged with distribution of crack in the Central District of California are prosecuted in federal court, whereas members of other races charged with similar offenses are prosecuted in state court, warrants close scrutiny by the federal judges in that district. In my view, the District Judge, who has sat on both the federal and the state benches in Los Angeles, acted well within her discretion to call for the development of facts that would demonstrate what standards, if any, governed the choice of forum where similarly situated offenders are prosecuted.
Respondents submitted a study showing that of all cases involving crack offenses that were closed by the Federal Public Defender’s Office in 1991, 24 out of 24 involved black defendants. To supplement this evidence, they submitted affidavits from two … attorneys…. The first reported a statement from an intake coordinator at a local drug treatment center that, in his experience, an equal number of crack users and dealers were caucasian as belonged to minorities. The second was from David R. Reed, counsel for respondent Armstrong. Reed was both an active court-appointed attorney in the Central District of California and one of the directors of the leading association of criminal defense lawyers who practice before the Los Angeles County courts. Reed stated that he did not recall “ever handling a [crack] cocaine case involving non-black defendants” in federal court, nor had he even heard of one. He further stated that “[t]here are many crack cocaine sales cases prosecuted in state court that do involve racial groups other than blacks.”
The majority discounts the probative value of the affidavits, claiming that they recounted “hearsay” and reported “personal conclusions based on anecdotal evidence.” But the Reed affidavit plainly contained more than mere hearsay; Reed offered information based on his own extensive experience in both federal and state courts. Given the breadth of his background, he was well qualified to compare the practices of federal and state prosecutors. In any event, the Government never objected to the admission of either affidavit on hearsay or any other grounds. It was certainly within the District Court’s discretion to credit the affidavits of two members of the bar of that Court, at least one of whom had presumably acquired a reputation by his frequent appearances there, and both of whose statements were made on pains of perjury.
The criticism that the affidavits were based on “anecdotal evidence” is also unpersuasive. I thought it was agreed that defendants do not need to prepare sophisticated statistical studies in order to receive mere discovery in cases like this one….
Even if respondents failed to carry their burden of showing that there were individuals who were not black but who could have been prosecuted in federal court for the same offenses, it does not follow that the District Court abused its discretion in ordering discovery. There can be no doubt that such individuals exist, and indeed the Government has never denied the same. In those circumstances, I fail to see why the District Court was unable to take judicial notice of this obvious fact and demand information from the Government’s files to support or refute respondents’ evidence. The presumption that some whites are prosecuted in state court is not “contradicted” by the statistics the majority cites, which show only that high percentages of blacks are convicted of certain federal crimes, while high percentages of whites are convicted of other federal crimes. Those figures are entirely consistent with the allegation of selective prosecution. The relevant comparison, rather, would be with the percentages of blacks and whites who commit those crimes. But, as discussed above, in the case of crack far greater numbers of whites are believed guilty of using the substance. The District Court, therefore, was entitled to find the evidence before it significant and to require some explanation from the Government.
In sum, I agree with the Sentencing Commission that “[w]hile the exercise of discretion by prosecutors and investigators has an impact on sentences in almost all cases to some extent, because of the 100–to–1 quantity ratio and federal mandatory minimum penalties, discretionary decisions in cocaine cases often have dramatic effects.” The severity of the penalty heightens both the danger of arbitrary enforcement and the need for careful scrutiny of any colorable claim of discriminatory enforcement. C.f. McCleskey v. Kemp (1987) (Stevens, J., dissenting). In this case, the evidence was sufficiently disturbing to persuade the District Judge to order discovery that might help explain the conspicuous racial pattern of cases before her court. I cannot accept the majority’s conclusion that the District Judge either exceeded her power or abused her discretion when she did so. I therefore respectfully dissent.
Notes and questions on United States v. Armstrong
1. Most of the analysis in Armstrong focuses on the enforcement decisions of prosecutors, since the defendant argued that prosecutors had selected him for prosecution on the basis of his race. But criminalization decisions can also contribute to racial disparities, as emphasized by Justice Stevens’s dissent. That dissent points out that federal law distinguished between drug offenses involving crack cocaine and those involving powder cocaine, and punished crack offenses more severely. At the time Armstrong was decided, the crack-powder disparity was 100:1, meaning a defendant needed to possess 100 times as much powder cocaine to trigger the same mandatory minimum sentence applicable to possession of crack cocaine. In 2010, Congress amended the law to reduce the disparity to 18:1.
2. A legal presumption is a kind of default rule: A fact will be presumed true unless there is the requisite degree of evidence to conclude otherwise. You have probably heard about the presumption of innocence, or the principle that a criminal defendant is presumed to be innocent until the prosecution has proven each element of the charged offense to be true “beyond a reasonable doubt.” We will consider the presumption of innocence, and the reasonable doubt standard, in more detail in Chapter Four. For now, notice that Armstrong rests on a different presumption, one that favors prosecutors: “the presumption of regularity.” As the Supreme Court describes this presumption, “in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly charged their official duties.” In the context of this case, a presumption of regularity is a presumption that prosecutors have not engaged in racial discrimination. The question then becomes what evidence is necessary to overcome that presumption. The Court has said that “clear evidence” is necessary, and such evidence was not presented here.
3. To get still more into the details: the defendant in Armstrong faced two different evidentiary challenges. To show unconstitutional racial discrimination, he would have to show that both a discriminatory effect and a discriminatory intent. This is the basic formula for an Equal Protection claim under the Fourteenth Amendment, and you will study it in much more detail in a constitutional law course. Discriminatory effects can often be established by patterns of racial disparities, but proving discriminatory intent often turns out to be difficult and nearly impossible, because courts usually will not accept statistical evidence of racial disparities as proof of discriminatory intent. We can leave these details of Equal Protection doctrine aside for now, though, because Christopher Armstrong’s challenge faltered at a still earlier stage. Before he could try to prove unconstitutional discrimination, he needed more information from the prosecution: he needed discovery of information about who was prosecuted for cocaine offenses and how federal prosecutors made those decisions. The Supreme Court’s opinion is not about whether Christopher Armstrong has adequately proved discrimination, but whether he should get discovery – in other words, the question is whether he has introduced sufficient evidence to be allowed to get more evidence.
4. What degree of statistical disparity should be sufficient to grant a defendant’s motion for discovery about prosecutorial charging practices? In a footnote in his dissent, Justice Stevens emphasized that the federal government had not been able to identify a single white defendant in this federal district who had been prosecuted for crack offenses; the government did identify eleven non-Black defendants prosecuted for crack offenses, but these eleven defendants were all members of other minority groups. According to Stevens, “[t]he District Court was authorized to draw adverse inferences from the Government’s inability to produce a single example of a white defendant, especially when the very purpose of its exercise was to allay the court’s concerns about the evidence of racially selective prosecutions. As another court has said: ‘Statistics are not, of course, the whole answer, but nothing is as emphatic as zero….’”
5. The Supreme Court in Armstrong does not explain how its “clear evidence” standard compares to other standards of proof, such as “preponderance of the evidence” or “beyond a reasonable doubt.” At least one lower federal court has interpreted Armstrong’s “clear evidence” standard as a “clear and convincing” requirement. Clear and convincing evidence is typically understood as requiring more evidence than a “preponderance,” but less than “beyond a reasonable doubt.” Again, we will return to these various legal terms when we consider adjudication decisions in Chapter Four.
6. Several years before Armstrong reached the Supreme Court, the Court considered an equal protection challenge to Georgia’s death penalty. Warren McCleskey was a Black man who had been sentenced to death after he was convicted of killing a white police officer. McCleskey argued that Georgia’s capital sentencing procedures operated in a racially discriminatory manner such that Black defendants who killed white victims were sentenced to death disproportionately often. McCleskey supported his argument with empirical analysis by Professor David Baldus and other researchers, described by the Supreme Court as “two sophisticated statistical studies that examine[d] over 2000 murder cases that occurred in Georgia during the 1970s.” McCleskey v. Kemp, 481 U.S. 279, 286 (1987). The Court acknowledged that the studies indicated that Black defendants who killed white victims were more likely to receive the death penalty, even after controlling for other potential variables. Id. at 287. But the Court nonetheless rejected the equal protection claim:
[A] defendant who alleges an equal protection violation has the burden of proving “the existence of purposeful discrimination.” A corollary to this principle is that a criminal defendant must prove that the purposeful discrimination “had a discriminatory effect” on him. Thus, to prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence. …
McCleskey’s statistical proffer must be viewed in the context of his challenge. McCleskey challenges decisions at the heart of the State’s criminal justice system. “[O]ne of society’s most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder.” Implementation of these laws necessarily requires discretionary judgments. Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. The unique nature of the decisions at issue in this case also counsels against adopting such an inference from the disparities indicated by the Baldus study. Accordingly, we hold that the Baldus study is clearly insufficient to support an inference that any of the decisionmakers in McCleskey’s case acted with discriminatory purpose.
McCleskey, 481 U.S. at 292; id. at 297. Warren McCleskey also argued that racial bias in Georgia’s capital sentencing practices violated the Eighth Amendment’s prohibition on cruel and unusual punishment. The Court rejected the Eighth Amendment argument as well. The Court did not use the precise phrase “presumption of regularity,” but it did explain that “we may lawfully presume that McCleskey’s death sentence was not ‘wantonly and freakishly’ imposed, and thus that the sentence is not disproportionate within any recognized meaning under the Eighth Amendment.” Id. at 308. The Court reiterated “the fundamental role of discretion in our criminal justice system,” id. at 311, and concluded:
At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system…. As this Court has recognized, any mode for determining guilt or punishment “has its weaknesses and the potential for misuse.” Specifically, “there can be ‘no perfect procedure for deciding in which cases governmental authority should be used to impose death.’ ” Despite these imperfections, our consistent rule has been that constitutional guarantees are met when “the mode [for determining guilt or punishment] itself has been surrounded with safeguards to make it as fair as possible.” Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious.
McCleskey, 481 U.S. at 312-313.
7. Courts sometimes distinguish between a selective prosecution claim, like that raised in Armstrong , and a selective enforcement claim. The difference turns primarily on whose enforcement decision is challenged – a prosecutor or another enforcement official. Here is one court’s recent explanation of the difference:
Selective prosecution occurs when, from among the pool of people referred by police, a prosecutor pursues similar cases differently based on race. Selective enforcement occurs when police investigate people of one race but not similarly-situated people of a different race. Hence, with selective enforcement, “the constitutional problem … precede[s] the prosecutor’s role.” It does not matter if prosecutors then pursue each case equally because the pool of defendants itself was racially selected. As equal protection claims, both selective prosecution and selective enforcement require proof “that the defendants’ actions had a discriminatory effect and were motivated by a discriminatory purpose.” A plaintiff must show discriminatory purpose “in his case.” And discriminatory purpose “implies more than … awareness of consequences. It implies that the decisionmaker … selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”
Conley v. United States, 5 F.4th 781, 789 (7th Cir. 2021). Conley involved a controversial federal practice known as “stash house” stings, in which undercover agents approached individuals and proposed robbing a stash house. In the usual situation in which this practice was deployed, there was no actual stash house, but the staged robbery would enable federal agents to collect extensive evidence to prosecute the target for conspiring or attempting federal drug and weapons offenses. Like Warren McCleskey, the defendant in Conley relied on an academic study, this one indicating that the persons targeted in stash house stings were disproportionately Black. The Seventh Circuit determined that a lower standard of proof—preponderance of the evidence—applied to selective enforcement claims, but ultimately found that the defendant could not prove his equal protection claim even under the lower standard of proof.
8. The Armstrong Court mentions Yick Wo v. Hopkins, 118 U.S. 356 (1886), to demonstrate that selective prosecution claims are not impossible to prove. (Later courts and commentators, including the Conley court, describe Yick Wo as a selective enforcement case rather than a selective prosecution case, since it involved apparently discriminatory decisions by city licensing officials to permit non-Chinese persons, but not Chinese persons, to operate laundries in wooden buildings.) As of 2022, Yick Wo remains the only case in which the Supreme Court has found adequate evidence to support either a selective enforcement or a selective prosecution claim under equal protection doctrine.
End of Chapter Review
Check Your Understanding (3-4)
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The original version of this chapter contained H5P content. You may want to remove or replace this element.
1. In fact the city already has several laws that serve this purpose. See, e.g., Ill. Comp. Stat., ch. 720 §§ 5/12–6 (1998) (intimidation); 570/405.2 (streetgang criminal drug conspiracy); 147/1 et seq. (Illinois Streetgang Terrorism Omnibus Prevention Act); 5/25–1 (mob action). Deputy Superintendent Cooper, the only representative of the police department at the Committee on Police and Fire hearing on the ordinance, testified that, of the kinds of behavior people had discussed at the hearing, “90 percent of those instances are actually criminal offenses where people, in fact, can be arrested.” [Fn. 17 in original Supreme Court Opinion.]
2. Petitioner cites historical precedent against recognizing what it describes as the “fundamental right to loiter.” While antiloitering ordinances have long existed in this country, their pedigree does not ensure their constitutionality. … [Vagrancy] laws went virtually unchallenged in this country until attorneys became widely available to the indigent following our decision in Gideon v. Wainwright, 372 U.S. 335 (1963). In addition, vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery. In 1865, for example, Alabama broadened its vagrancy statute to include “any runaway, stubborn servant or child” and “a laborer or servant who loiters away his time, or refuses to comply with any contract for a term of service without just cause.” T. Wilson, Black Codes of the South 76 (1965). The Reconstruction-era vagrancy laws had especially harsh consequences on African–American women and children. L. Kerber, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship 50–69 (1998). Neither this history nor … Justice THOMAS’ dissent persuades us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause. [Fn. 20 in original Supreme Court opinion.]
3. Other defendants had introduced this study in support of similar discovery motions in at least two other Central District cocaine prosecutions. Both motions were denied. One District Judge explained from the bench that the 23–person sample before him was “statistically insignificant,” and that the evidence did not indicate “whether there is a bias in the distribution of crime that says black people use crack cocaine, hispanic people use powdered cocaine, caucasian people use whatever it is they use.” [Fn. 1 in original opinion.] | textbooks/biz/Criminal_Law/Criminal_Law%3A_An_Integrated_Approach_(Ristroph)/1.03%3A_Enforcement_Decisions.txt |
Deciding to Convict
After a criminal statute has been enacted, and after enforcement officials have brought charges against a specific individual under that statute, there is still one more key legal decision to be made: someone must decide whether the defendant is guilty of the charged offense. In one standard account of the criminal process, this adjudication decision is made by a jury after evidence is presented at trial. Adjudication by trial does sometimes occur in criminal law, but it is rare. Instead, most criminal convictions are the result of guilty pleas. And in some states, even the trials that do take place are typically bench trials, or trials in which a judge rather than a jury serves as the fact-finder. This chapter seeks to illuminate all of these various types of adjudication decisions, and to prompt reflection on the systemic consequences of the fact that adjudication is almost always a matter of pleas rather than trials.
The types of decisions examined in the previous two chapters—criminalization and enforcement decisions—have significant influence at the adjudication stage. As you know, criminalization decisions are made by a legislature in the first instance, expressed in the form of a statute that should define precisely the conduct designated as a crime. Criminal statutes structure adjudication decisions by identifying the key factors – the “elements” of the offense – that must be established in order to convict a defendant. Legislative decisions about how to define a crime, and enforcement decisions about which particular statute to charge, thus play an important role in shaping the adjudication decision. Indeed, a prosecutor’s power to select which statute(s) to use to charge the defendant is a key factor influencing guilty pleas, as discussed below. Moreover, enforcement decisions by police officers will often determine what evidence is available at the adjudication stage. When officers decide to question or search an individual based on “reasonable suspicion” or “probable cause,” the legal standards for enforcement decisions discussed in Chapter Three, police may then discover evidence that can meet the higher legal standards applicable to adjudication decisions. Recall Copenhaver from Chapter One, where a sheriff’s decision to stop a car for an expired registration led to the discovery of evidence of drug offenses.
In the next section of this chapter, we consider a phrase that is probably already familiar to you: “proof beyond a reasonable doubt.” In the rare instances in which criminal adjudication occurs at a trial, the fact-finder (whether judge or jury) is directed to find the defendant guilty only upon proof beyond a reasonable doubt. We will examine both the concept of proof in criminal law, comparing it to the suspicion thresholds discussed in the last chapter, and the concept of reasonable doubt. Examining proof requirements also gives us another opportunity to practice statutory analysis: you will need to be able to identify the separate elements of a statute that need to be proven to establish guilt.
Although it is important to understand the beyond a reasonable doubt standard, and to be able to analyze questions of proof in relation to specific statutory elements, it is also important to know that most criminal adjudication occurs by means of a guilty plea. When a defendant pleads guilty, he or she waives the right to a trial and relieves the prosecution of the burden to prove guilt. In this chapter, we will examine the basic legal requirements of a guilty plea, and we will consider some of the features of the criminal legal system that make guilty pleas so common.
A decision by a jury to convict, or a decision by a defendant to plead guilty, is a decision made and recorded at the trial court. That is where most adjudication decisions are made, and where most criminal cases end. But a minority of criminal cases do go to an appeals court, and appellate court opinions comprise a disproportionate share of the judicial opinions you will read to learn criminal law. After considering adjudication through trials or plea bargaining, this chapter turns to appellate adjudication, both to help you put the appellate opinions you read into context, and to illustrate the ways that appellate judges can review and revise criminalization, enforcement, and adjudication decisions made by other actors.
This chapter concludes Unit One, which has introduced you to three types of key decisions in criminal law: criminalization, enforcement, and adjudication decisions. But even as you learn about the decisions made by public officials, you should also be thinking about the arguments that lawyers make to try to influence those decisions. A concluding section of this chapter reviews the main types of arguments that lawyers have raised in the cases you’ve read so far in this book. Familiarity with these arguments will be useful as you begin to study specific categories of criminal offenses in Unit Two.
Legal “Proof” and Reasonable Doubt
A note about statutes: the next case, In re Winship, concerns a juvenile defendant who was charged with “the equivalent of larceny.” That means he was alleged to have committed acts that would constitute larceny were he an adult. The text of New York’s larceny statute is not important to the opinion below and not reprinted here, but larceny is discussed in detail in Chapter Five. In general, you should continue to look closely at the relevant statutes when they are included before or within a judicial opinion. The next section of this chapter will examine proof requirements in relation to the “elements” of criminal statutes, and the statutory text is always the place to start as you seek to identify the elements of a crime.
In the Matter of Samuel WINSHIP, Appellant
Supreme Court of the United States
397 U.S. 358
Decided March 31, 1970
Mr. Justice BRENNAN delivered the opinion of the Court.
Constitutional questions decided by this Court concerning the juvenile process have centered on the adjudicatory stage at “which a determination is made as to whether a juvenile is a ‘delinquent’ as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution.” In re Gault , 387 U.S. 1 (1967). Gault decided that, although the Fourteenth Amendment does not require that the hearing at this stage conform with all the requirements of a criminal trial or even of the usual administrative proceeding, the Due Process Clause does require application during the adjudicatory hearing of “the essentials of due process and fair treatment. This case presents the single, narrow question whether proof beyond a reasonable doubt is among [those essentials of due process] required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.
…[ A judge in New York Family Court found that appellant, then a 12-year-old boy, had entered a locker and stolen \$112… The petition which charged appellant with delinquency alleged that his act, if done by an adult, would constitute the crime or crimes of Larceny. The judge acknowledged that the proof might not establish guilt beyond a reasonable doubt, but rejected appellant s contention that such proof was required by the Fourteenth Amendment. [ Section 744(b) of the Family Court Act ] provides that (a) ny determination at the conclusion of (an adjudicatory) hearing that a (juvenile) did an act or acts must be based on a preponderance of the evidence.
I
The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The “demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, (though) its crystallization into the formula ‘beyond a reasonable doubt’ seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.” …
Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required. Mr. Justice Frankfurter [identified] “the duty of the Government to establish guilt beyond a reasonable doubt. This notion—basic in our law and rightly one of the boasts of a free society—is a requirement and a safeguard of due process of law in the historic, procedural content of ‘due process.’” Leland v. Oregon , 343 U.S. 790 (1952) (dissenting opinion). In a similar vein, the Court said in Brinegar v. United States (1949) that “(g) uilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property. … This Court [has] said … “ No man should be deprived of his life under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.”
The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law.” As the dissenters in the New York Court of Appeals observed, and we agree, “a person accused of a crime would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.”
The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interest of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. … “T here is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of convincing the factfinder of his guilt.” To this end, the reasonable-doubt standard is indispensable, for it “impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.”
Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.
Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
II
We turn to the question whether juveniles, like adults, are constitutionally entitled to proof beyond a reasonable doubt when they are charged with violation of a criminal law. The same considerations that demand extreme caution in factfinding to protect the innocent adult apply as well to the innocent child. … [ Gault ] made clear … that civil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts, for “(a) proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.”
… Finally, we reject the Court of Appeals’ suggestion that there is, in any event, only a tenuous difference between the reasonable-doubt and preponderance standards. The suggestion is singularly unpersuasive. In this very case, the trial judge’s ability to distinguish between the two standards enabled him to make a finding of guilt that he conceded he might not have made under the standard of proof beyond a reasonable doubt. Indeed, the trial judge s action evidences the accuracy of the observation of commentators that the preponderance test is susceptible to the misinterpretation that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted.
III
In sum, the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gault —notice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination. We therefore hold, in agreement with Chief Judge Fuld in dissent in the Court of Appeals, that, where a 12-year-old child is charged with an act of stealing which renders him liable to confinement for as long as six years, then, as a matter of due process the case against him must be proved beyond a reasonable doubt.
Reversed.
Mr. Justice HARLAN, concurring.
…I begin by stating two propositions, neither of which I believe can be fairly disputed. First, in a judicial proceeding in which there is a dispute about the facts of some earlier event, the factfinder cannot acquire unassailably accurate knowledge of what happened. Instead, all the fact-finder can acquire is a belief of what probably happened. The intensity of this belief—the degree to which a factfinder is convinced that a given act actually occurred—can, of course, vary. In this regard, a standard of proof represents an attempt to instruct the fact-finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. Although the phrases ‘preponderance of the evidence’ and ‘proof beyond a reasonable doubt’ are quantitatively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions.
A second proposition, which is really nothing more than a corollary of the first, is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In a lawsuit between two parties, a factual error can make a difference in one of two ways. First, it can result in a judgment in favor of the plaintiff when the true facts warrant a judgment for the defendant. The analogue in a criminal case would be the conviction of an innocent man. On the other hand, an erroneous factual determination can result in a judgment for the defendant when the true facts justify a judgment in plaintiff s favor. The criminal analogue would be the acquittal of a guilty man.
The standard of proof influences the relative frequency of these two types of erroneous outcomes. If, for example, the standard of proof for a criminal trial were a preponderance of the evidence rather than proof beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent. Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each.
… In this context, I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free. It is only because of the nearly complete and long-standing acceptance of the reasonable-doubt standard by the States in criminal trials that the Court has not before today had to hold explicitly that due process, as an expression of fundamental procedural fairness, requires a more stringent standard for criminal trials than for ordinary civil litigation.
[Dissenting opinions of BURGER, STEWART, and BLACK omitted.]
Notes and questions on Winship
1. Winship has been called “the civil case at the heart of criminal procedure,” and that phrase captures an oddity of the decision: it was technically a civil case, since New York (like other states) had created a separate juvenile court to address wrongdoing by minors and had classified these juvenile proceedings as civil rather than criminal. See W. David Ball, The Civil Case at the Heart of Criminal Procedure: Winship, Stigma, and the Civil-Criminal Distinction , 38 Am. J. Crim. L . 117 (2011). Since the creation of juvenile courts, the extent to which juvenile defendants in these ostensibly civil proceedings are entitled to the same constitutional protections as adult criminal defendants has been a recurring question. In the decision you’ve just read, the Supreme Court determined that the consequences of being labeled “delinquent” as a juvenile were sufficiently similar to the consequences of being labeled “guilty” as an adult that the same standard of proof should apply in both contexts. And although, prior to 1970, the Court had not formally declared “proof beyond a reasonable doubt” to be a constitutional requirement in criminal cases, it used Winship to make that declaration.
2. The Winshipmajority refers at times to “proof beyond a reasonable doubt,” which is a phrase you have probably heard before. But the Court also describes this legal standard as “the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt” (emphasis added). Is there a difference between proving a fact, on one hand, and persuading or convincing another person that the fact is true?If so, what is that difference?
3. To expand on the question in the last note, consider how the legal concept of “proof” may differ from a mathematical or scientific conception of proof. As Justice Harlan emphasizes in his concurring opinionin Winship, fact-finders do not and cannot “acquire unassailably accurate knowledge of what happened.Instead, all the fact-find can acquire is a belief of what probably happened.(This observation seemsespecially true with regard to mental states. A fact-finder cannot discover or know with certainty exactly what a defendant was thinking at the time of the alleged crime.)Thus, in Justice Harlan’s words, a legal standard of proof “represents an attempt to instruct the fact-finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.”Alegal standard of proof has to do with the confidence of a human decisionmaker. Ina sense, legal proof is a state of mind– the adjudicator’s state of mind. The conviction (in the sense of firmly held belief) of the fact-finder produces the conviction (in the sense of legal designation as guilty) of the defendant. Although the phrase “proofbeyond a reasonable doubt” has become the usual description of the standard of proof in criminal cases, especially after Winship, some courts before and even after Winshipdescribe the issue as whether the factfinder is “convincedbeyond a reasonable doubt.” Look closely at the Court’s definition of proof here: “Winshippresupposes as an essential of … due process … that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 316 (1979).
4. The Winship Court argues that individuals must have confidence that the government will not be able to convict anyone “without convincing a proper factfinder of … guilt with utmost certainty.” Many defendants have cited this language to argue that juries should be instructed that they should not vote to convict unless they have “utmost certainty” of the defendant’s guilt. Courts routinely refuse this request, however. Several years after Winship, theSupreme Court described therequisitedegree of certainty as “near certitude” rather than “utmost certainty.”Jackson v. Virginia, 443 U.S. 307, 315 (1979).More generally, the Court hastreated “beyond a reasonable doubt” as a constitutional requirement without a fixed meaning. The Court hasrefused to require states to adhere to any specific definition of “beyond a reasonable doubt,” and it has allowed states to refuse to define the term or to allow conflicting definitions.See Miller W. Shealy, Jr., A Reasonable Doubt About “Reasonable Doubt,”65 Okla. L. Rev. 225 (2013).As Shealy reports, “[o]ne very frustrated trial judge, instructing the jury on ‘reasonable doubt,’ deftly summarized the current state of the law when he said, ‘[W]hoare we to tell you what is reasonable and what is not? That is wholly within your province.’” Id. at 228.
5. The family court judge who presided over Samuel Winship’s trial explicitly stated that he was “convinced” by a “preponderance of the evidence,” but he didn’t think the evidence satisfied a “beyond a reasonable doubt” standard. How would you describe the difference between “preponderance of the evidence” as a legal standard and “beyond a reasonable doubt”? Can you imagine why someone might argue, as did the lower appellate court in this case, that there is only a “tenuous difference” between the two standards?“Preponderance of the evidence” is often described as a “more likely than not” standard, but courts are usually reluctant to quantify“beyond a reasonable doubt” as a percentage or probability.One Rhode Island judge used a scale—apparently, an old-fashioned balance scale of the type frequently depicted as “the scales of justice”—to explain reasonable doubt to a jury:
I just happen to have a scale here. Are they about equal? In a civil case the moving party or petitioner must prove the case by a fair preponderance of the evidence. Remember I told you that the scale just has to tilt ever so slightly for the plaintiff to prevail? But this is a criminal case where the burden is greater[;] beyond a reasonable doubt. The scale must go down significantly more, but not all the way. It’s not beyond all doubt, or you would have the scale touch the bench. That’s not the standard. It’s not beyond all doubt. It’s beyond a reasonable doubt.
The defendant appealed his conviction, arguing that the jury instruction was erroneous. The Rhode Island Supreme Court found no reversible error, but expressed reservations about the trial judge’s explanation:
Although we agree that the “beyond a reasonable doubt” standard cannot be reduced to a single percentage figure to represent the likelihood that a defendant is guilty, it is still true, as the trial justice instructed the jury, that if the level of certainty needed to convict were subject to quantification the figure would be appreciably greater than 50 percent but still less than 100 percent. Here, the trial justice merely defined the range, by stating that “[t]he scale must go down significantly more [than 50 percent], but not all the way.”
Yet, although we conclude that the trial justice did not commit reversible error in giving this instruction, use of a scale metaphor, even if it is invoked merely to define a range, may misleadingly tend to quantify the reasonable-doubt standard by suggesting that, within a certain range, a single percentage figure exists beyond which the jury would have to conclude that they were convinced of a defendant’s guilt beyond a reasonable doubt. Therefore, we hold that although the trial justice did not commit reversible error by adverting to the scale metaphor in defining reasonable doubt to the jury, his “characterization of the standard as quantitative rather than qualitative might better have been omitted.”
State v. O’Brien, 774 A.2d 89, 110 (R.I. 2001).
6. Be sure to understand the difference between two separate issues: the standard of proof, on one hand, and allocation of the burden of proof, on the other. “Beyond a reasonable doubt,” “preponderance of the evidence,” and “clear and convincing evidence” are typical formulations of standards of proof. Again, these phrases describe the degree of confidence that the fact-finder should hold. Beyond a reasonable doubt requires the highest degree of confidence, while preponderance of the evidence requires only that the factfinder think the fact in question is more likely than not to be true. Clear and convincing evidence is an intermediate standard between beyond a reasonable doubt and preponderance. (All of these standards of proof are understood to require much greater levels of confidence than the suspicion standards discussed in Chapter Three, “reasonable suspicion” and “probable cause.”)The allocation of the burden of proof refers not to the factfinder’s degree of confidence, but to which party is obligated to convince the factfinder. In criminal cases, the prosecution carries the burden of proof with regard to each element of the charged offense, which means that it is up to the prosecution to present evidence that persuades the factfinder of guilt (unless, of course, the defendant pleads guilty and relieves the prosecution of this burden). But there are specific kinds of claims raised by defendants called affirmative defenses, and for these claims a state can require the defendant to carry the burden of proof. We will discuss affirmative defenses and defendants’ burdens of proof in relation to Patterson v. New Yorkin Chapter Six, and again as they arise in later cases.
7. In addition to the two issues just discussed (standard of proof, and allocation of burden), adjudication raises a third issue: who will serve as the fact-finder, or the person who must be convinced that the necessary facts have been established? In Winshipitself, a family court judge had served as the factfinder, not a jury. Shortly after Winship, the Supreme Court considered whether juvenile defendants have the same constitutional right to a jury trial that the Sixth Amendment grants to adult criminal defendants, and ultimately decided that the right to a jury did not apply in juvenile proceedings. McKeiver v. Pennsylvania, 403 U.S. 528, 545-548 (1971). For adult defendants in criminal proceedings, however, the Court has recognized a right to have a jury serve as fact-finder if the potential penalty is six months imprisonment or longer. See Blanton v. City of North Las Vegas, 489 U.S. 538 (1989); Duncan v. Louisiana, 391 U.S. 145 (1967). As previously emphasized, however, and as discussed further in the next section of this chapter, most criminal defendants waive this right to a jury.
8. It is often said that a standard of proof allocates the risk of error. How does the WinshipCourt use this claim in support of its conclusion that the reasonable doubt standard is a constitutional requirement in criminal cases (and thus also in a juvenile delinquency proceeding)?
9. In his concurrence, Justice Harlan quoted a famous evidence scholar, John Henry Wigmore, who had examined courts’ attempts to describe the reasonable doubt standard and concluded, “The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief. Hence there can be yet no successful method of communicating intelligibly … a sound method of self-analysis for one’s [own] belief.” 9 J. Wigmore, Evidence 325 (3d ed. 1940), quoted in Winship, 397 U.S. 358, 369 (Harlan, J., concurring). Harlan seemed to share some of Wigmore’s skepticism, noting that standards of proof were “not a very sure guide to decisionmaking,” but he ultimately agreed with the Winship majority that it was important to adopt “beyond a reasonable doubt” in criminal cases. As Harlan explained, “the choice of the standard of proof for a particular variety of adjudication does, I think, reflect a very fundamental assessment of the comparative social costs of erroneous factual determinations.” Id. at 370.
10. The previous two notes recount a frequently repeated rationale for a beyond-a-reasonable-doubt standard in criminal cases: the standard allocates the risks of error in a way that favors the defendant, and this allocation reflects a societal assessment that the costs to an individual of a wrongful conviction are so high that we want the government to bear the greater risk of error. This idea is often expressed with the claim that it is better that ten guilty men go free than one innocent man be convicted. As a historical matter, though, “beyond a reasonable doubt” may have entered the law for very different reasons. Legal historian James Whitman has argued that the standard first as a response to a reluctance to convict among medieval Christians, who feared that to convict a fellow human would expose themselves to eternal damnation. The beyond a reasonable doubt standard emerged to provide “moral comfort” to jurors by reassuring them that God would not condemn them for convicting a defendant when the evidence was sufficiently persuasive. James Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (2008).
Evidence Sufficiency and Elements of Offenses
Winship requires proof beyond a reasonable doubt, but proof of what, exactly? In the Supreme Court’s words, “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Winship, 397 U.S. at 364. Elsewhere, the Court said that the reasonable doubt standard was “the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.” Id. at 361. Thus, under Winship, it is important to identify the separate “elements” of a criminal offense, or the specific facts that must be established to support a conviction. Owens v. State, below, will help you think about how to identify all the elements of an offense and how to determine whether the evidence is sufficient to prove those elements.
Md. Transportation Art. § 21-902. Driving while intoxicated, under the influence of alcohol, or under the influence of a drug, a combination of alcohol and a drug, or a controlled dangerous substance.
(a) Driving while intoxicated.—A person may not drive or attempt to drive any vehicle while intoxicated.
Md. Transportation Art. § 21-101.1
(a) In general.—The provisions of this title relating to the driving of vehicles refer only to the driving of vehicles on highways, except …
(b) Applicability to private property.—(1) A person may not drive a motor vehicle in violation of any provision of this title on any private property that is used by the public in general.
Christopher C. OWENS, Jr.
v.
STATE of Maryland
Court of Special Appeals of Maryland
93 Md. App. 162
Sept. 3, 1992
MOYLAN, Judge.
This appeal presents us with a small gem of a problem from the borderland of legal sufficiency. It is one of those few occasions when some frequently invoked but rarely appropriate language is actually pertinent. Ironically, in this case it was not invoked. The language is, “[A] conviction upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.” West v. State, 539 A.2d 231 (1988) (emphasis in original).
We have here a conviction based upon circumstantial evidence alone. The circumstance is that a suspect was found behind the wheel of an automobile parked on a private driveway at night with the lights on and with the motor running. Although there are many far-fetched and speculative hypotheses that might be conjured up (but which require no affirmative elimination), there are only two unstrained and likely inferences that could reasonably arise. One is that the vehicle and its driver had arrived at the driveway from somewhere else. The other is that the driver had gotten into and started up the vehicle and was about to depart for somewhere else.
The first hypothesis, combined with the added factor that the likely driver was intoxicated, is consistent with guilt. The second hypothesis, because the law intervened before the forbidden deed could be done, is consistent with innocence. With either inference equally likely, a fact finder could not fairly draw the guilty inference and reject the innocent with the requisite certainty beyond a reasonable doubt. We are called upon, therefore, to examine the circumstantial predicate more closely and to ascertain whether there were any attendant and ancillary circumstances to render less likely, and therefore less reasonable, the hypothesis of innocence. Thereon hangs the decision.
The appellant, Christopher Columbus Owens, Jr., was convicted in the Circuit Court by Judge D. William Simpson, sitting without a jury, of driving while intoxicated. Upon this appeal, he raises the single contention that Judge Simpson was clearly erroneous in finding him guilty because the evidence was not legally sufficient to support such finding.
The evidence, to be sure, was meager. The State s only witness was Trooper Samuel Cottman , who testified that at approximately 11 P.M. on March 17, 1991, he drove to the area of Sackertown Road in response to a complaint that had been called in about a suspicious vehicle. He spotted a truck matching the description of the “suspicious vehicle.” It was parked in the driveway of a private residence.
The truck s engine was running and its lights were on. The appellant was asleep in the driver s seat, with an open can of Budweiser clasped between his legs. Two more empty beer cans were inside the vehicle. As Trooper Cottman awakened him, the appellant appeared confused and did not know where he was. He stumbled out of the vehicle. There was a strong odor of alcohol on his breath. His face was flushed and his eyes were red. When asked to recite the alphabet, the appellant “mumbled through the letters, didn t state any of the letters clearly and failed to say them in the correct order.” His speech generally was “slurred and very unclear.” When taken into custody, the appellant was “very argumentative … and uncooperative.” A check with the Motor Vehicles Administration revealed that the appellant had an alcohol restriction on his license. The appellant declined to submit to a blood test for alcohol.
After the brief direct examination of Trooper Cottman defense counsel asked only two questions, establishing that the driveway was private property and that the vehicle was sitting on that private driveway. The appellant did not take the stand and no defense witnesses were called. The appellant s argument as to legal insufficiency is clever. He chooses to fight not over the fact of drunkenness but over the place of drunkenness. He points out that his conviction was under the Transportation Article, which is limited in its coverage to the driving of vehicles on “highways” and does not extend to driving on a “private road or driveway.”
We agree with the appellant that he could not properly have been convicted for driving, no matter how intoxicated, back and forth along the short span of a private driveway. The theory of the State s case, however, rests upon the almost Newtonian principle that present stasis on the driveway implies earlier motion on the highway. The appellant was not convicted of drunken driving on the private driveway, but of drunken driving on the public highway before coming to rest on the private driveway.
It is a classic case of circumstantial evidence. From his presence behind the wheel of a vehicle on a private driveway with the lights on and the motor running, it can reasonably be inferred that such individual either 1) had just arrived by way of the public highway or 2) was just about to set forth upon the public highway. The binary nature of the probabilities that a vehicular odyssey had just concluded or was just about to begin is strengthened by the lack of evidence of any third reasonable explanation, such as the presence beside him of an inamorata or of a baseball game blaring forth on the car radio. Either he was coming or he was going.
The first inference would render the appellant guilty; the second would not. Mere presence behind the wheel with the lights on and the motor running could give rise to either inference, the guilty one and the innocent one. For the State to prevail, there has to be some other factor to enhance the likelihood of the first inference and to diminish the likelihood of the second. We must look for a tiebreaker.
The State had several opportunities to break the game wide open but failed to capitalize on either of them. As Trooper Cottman woke the appellant, he asked him what he was doing there. The appellant responded that he had just driven the occupant of the residence home. Without explanation, the appellant s objection to the answer was sustained. For purposes of the present analysis, therefore, it is not in the case. We must look for a tiebreaker elsewhere.
In trying to resolve whether the appellant 1) had just been driving or 2) was just about to drive, it would have been helpful to know whether the driveway in which he was found was that of his own residence or that of some other residence. If he were parked in someone else’s driveway with the motor still running, it would be more likely that he had just driven there a short time before. If parked in his own driveway at home, on the other hand, the relative strength of the inbound inference over the outbound inference would diminish.
The driveway where the arrest took place was on Sackertown Road. The charging document (which, of course, is not evidence) listed the appellant s address as 112 Cove Second Street. When the appellant was arrested, presumably his driver s license was taken from him. Since one of the charges against the appellant was that of driving in violation of an alcohol restriction on his license, it would have been routine procedure to have offered the license, showing the restriction, into evidence. In terms of our present legal sufficiency exercise, the license would fortuitously have shown the appellant s residence as well. Because of the summary nature of the trial, however, the license was never offered in evidence. For purposes of the present analysis, therefore, the appellant s home address is not in the case. We must continue to look for a tiebreaker elsewhere.
Three beer cans were in evidence. The presence of a partially consumed can of beer between the appellant s legs and two other empty cans in the back seat would give rise to a reasonable inference that the appellant s drinking spree was on the downslope rather than at an early stage. At least a partial venue of the spree, moreover, would reasonably appear to have been the automobile. One does not typically drink in the house and then carry the empties out to the car. Some significant drinking, it may be inferred, had taken place while the appellant was in the car. The appellant s state of unconsciousness, moreover, enforces that inference. One passes out on the steering wheel after one has been drinking for some time, not as one only begins to drink. It is not a reasonable hypothesis that one would leave the house, get in the car, turn on the lights, turn on the motor, and then, before putting the car in gear and driving off, consume enough alcohol to pass out on the steering wheel. Whatever had been going on (driving and drinking) would seem more likely to have been at a terminal stage than at an incipient one.
Yet another factor would have sufficed, we conclude, to break the tie between whether the appellant had not yet left home or was already abroad upon the town. Without anything further as to its contents being revealed, it was nonetheless in evidence that the thing that had brought Trooper Cottman to the scene was a complaint about a suspicious vehicle. The inference is reasonable that the vehicle had been observed driving in some sort of erratic fashion. Had the appellant simply been sitting, with his motor idling, on the driveway of his own residence, it is not likely that someone from the immediate vicinity would have found suspicious the presence of a familiar neighbor in a familiar car sitting in his own driveway. The call to the police, even without more being shown, inferentially augurs more than that. It does not prove guilt in and of itself. It simply makes one of two alternative inferences less reasonable and its alternative inference thereby more reasonable.
The totality of the circumstances are, in the last analysis, inconsistent with a reasonable hypothesis of innocence. They do not, of course, foreclose the hypothesis but such has never been required. They do make the hypothesis more strained and less likely. By an inverse proportion, the diminishing force of one inference enhances the force of its alternative. It makes the drawing of the inference of guilt more than a mere flip of a coin between guilt and innocence. It makes it rational and therefore within the proper purview of the factfinder. We affirm.
Notes and questions on Owens
1. The Maryland drunk driving statute, § 21-902, is reprinted just before the court’s opinion and seems short and simple. It requires that the defendant a) drive or attempt to drive, b) any vehicle, c) while intoxicated. But the defense argued that because the statute was part of the Transportation Article, which applied to “highways,” there was an additional element of the offense: the prosecution had to show that the driving (or the attempt to drive) took place on a public roadway rather than private property. The Owens court apparently accepted this interpretation of the statute (but the state supreme court later disagreed, as explained in the last note below). One lesson to take from Owens is the fact that criminalization decisions—the precise definition of an offense—are designed to structure adjudication decisions. The factfinder is not supposed to make his own determination of whether a man attempting to drive on a private driveway is guilty of a crime; rather, the factfinder is supposed to take the specific elements of the offense as defined by the legislature, and then determine whether the evidence establishes those pre-defined elements.
2. The Owens court doesn’t give a crisp definition of “circumstantial evidence,” but can you figure out what the term means? Here is one explanation from a pattern jury instruction:
You may have heard the phrases “direct evidence” and “circumstantial evidence.” Direct evidence is proof that does not require an inference, such as the testimony of someone who claims to have personal knowledge of a fact. Circumstantial Evidence is proof of a fact, or a series of facts, that tends to show that some other fact is true. As an example, direct evidence that it is raining is testimony from a … witness who says, “I was outside a minute ago and I saw it raining.” Circumstantial evidence that it is raining is the observation of someone entering a room carrying a wet umbrella. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. You should decide how much weight to give to any evidence. In reaching your verdict, you should consider all the evidence in the case, including the circumstantial evidence.
Stephen E. Arthur & Robert S. Hunter, Federal Trial Handbook: Criminal, 41:3 (2020). Although this federal instruction says direct and circumstantial evidence should be given the same weight, some states do treat direct and circumstantial evidence differently, as discussed below.
3. Would you have voted to convict Christopher Columbus Owens? Why or why not? Which facts or details seem most important to you? Notice that some facts (such as the defendant’s statement that he had just given someone a ride home) are known to the court, but are not officially “in evidence.” Which facts that are “in evidence” seem most important to your vote to acquit or convict?
4. Why does the Owens court mention facts not in evidence – that is, facts supposedly not relevant to its decision? Keep in mind that judges are human decisionmakers, and judicial opinions are carefully crafted documents. Are the facts not officially in evidence—such as the fact that Owens was not at his own residence, or that Owens stated that he had just driven a friend home—included to influence the reader of the opinion, even as the court claims that these facts must not influence its own decision?
5. The appellate court says that it is looking for a “tiebreaker” to choose between two possible inferences, one of innocence and one of guilt. It ultimately finds “the totality of the circumstances” to be “inconsistent with a reasonable hypothesis of innocence” even if they do not “foreclose” a hypothesis of innocence. The inference of guilt, the court says, is “more than a mere flip of a coin.” Are the concepts of a “tiebreaker” or a coin flip consistent with proof beyond a reasonable doubt? Is this court applying a reasonable doubt standard?
6. In relation to the question raised in the previous note, it is important to see that the appellate court is not in the same position as a jury or a trial judge serving as fact-finder, and it is not applying exactly the same legal standard. When an appellate court reviews a conviction for sufficiency of the evidence, the appellate judges are not asking themselves whether they are convinced beyond a reasonable doubt. Rather, the usual standard for a sufficiency of the evidence claim is whether there is enough evidence of guilt so that a reasonable factfinder could have been convinced. Put differently, an appellate court will not typically reverse a conviction for insufficiency of evidence unless the court concludes that the evidence is so weak that no reasonable factfinder could have been convinced beyond a reasonable doubt. (Of course, the issue raised by Wigmore and referenced in Winship still remains: how do human decisionmakers measure the intensity of their own beliefs? And we could now add with regard to appellate review, how do appellate judges evaluate the reasonableness of the intensity of a hypothetical juror’s beliefs?)
7. The Owens court states, in the last paragraph of the opinion, that the evidence need not “foreclose the hypothesis” of innocence in order to be sufficient. Some states adopt a more rigorous standard for convictions based on circumstantial evidence. For example, Georgia law provides that if an element of a crime is established only by circumstantial evidence, “the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of guilt of the accused.” Ga. Code. Ann. § 24-4-6. In other words, in contrast to the federal instruction quoted in the first note above, Georgia purports to treat circumstantial evidence differently than direct evidence.
8. A few years after the Court of Special Appeals (an intermediate appellate court) decided Owens, the Maryland Court of Appeals (the state’s highest court) considered a similar case, Rettig v. State, 639 A.2d 670 (Ct. App. Md. 1994). The defendant in that case, Craig Rettig, was represented by the state public defender, the same office that had represented Owens. And Rettig’s attorney raised a similar argument against a drunk driving conviction. Rettig was arrested after he got in an accident while driving an all-terrain vehicle on his own property in the early morning hours; by his own admission, Rettig was “toasted” at the time of the accident. Though Rettig argued (through his attorney) that he could not be convicted because the state drunk driving law applied only to public roadways, the state supreme court rejected this argument, overruling this aspect of Owens. The state supreme court noted that still another provision of the Transportation Article, one not mentioned in Owens, stated “The provisions of this subtitle apply throughout this State, whether on or off a highway.” After Rettig, Maryland prosecutors do not need to show that drunk driving occurred on a public roadway in order to secure a conviction. Owens and Rettig can thus remind us that statutes are subject to different interpretations—especially if different parts of a statute contain seeming contradictory language! Within a given jurisdiction, an interpretation by a higher court displaces a contrary interpretation by a lower court. We look again at statutory interpretation by appellate courts at the end of this chapter with Yates v. United States.
Check Your Understanding (4-1)
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A System of Pleas
The two cases you’ve read so far in this chapter both involved trials, albeit bench trials to a judge serving as fact-finder rather than jury trials. But most criminal defendants do not go to trial, either jury trial or bench trial. Instead, most criminal cases are resolved without a trial. If the case ends in a conviction, that conviction is almost always the result of a guilty plea rather than a trial. Given that a defendant has a constitutional right to a jury trial, and a due process right to demand that the prosecution prove each element of the offense beyond a reasonable doubt, why do so many defendants plead guilty? To begin to understand the dynamics of criminal prosecutions and the prevalence of pleas, consider the next case. The applicable statutes are reprinted before the opinion, but please note that neither statute is still in force today.
Ky Rev. Stat. § 434.1 30.
Any person who forges or counterfeits any writing in order to obtain fraudulently the possession of or to deprive another of any money or property, or to cause another to be injured in his estate or lawful rights, or any person who utters and publishes such an instrument as true, knowing it to be forged and counterfeited, shall be confined in the penitentiary for not less than two nor more than ten years.
Ky. Rev. Stat. § 431.190. Conviction of felony; punishment on second and third offenses.
Any person convicted a second time of felony shall be confined in the penitentiary not less than double the time of the sentence under the first conviction; if convicted a third time of felony, he shall be confined in the penitentiary during his life….
Don BORDENKIRCHER
Superintendent, Kentucky State Penitentiary, Petitioner
v.
Paul Lewis HAYES
Supreme Court of the United States
434 U.S. 357
Decided Jan. 18, 1978
Justice STEWART delivered the opinion of the Court.
The question in this case is whether the Due Process Clause of the Fourteenth Amendment is violated when a state prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged.
I
The respondent, Paul Lewis Hayes, was indicted by a Fayette County, Ky., grand jury on a charge of uttering a forged instrument in the amount of \$88.30, an offense then punishable by a term of 2 to 10 years in prison. Ky. Rev. Stat. § 434.130 (1973) (repealed 1975). After arraignment, Hayes, his retained counsel, and the [prosecutor] met … to discuss a possible plea agreement. During these conferences the prosecutor offered to recommend a sentence of five years in prison if Hayes would plead guilty to the indictment. He also said that if Hayes did not plead guilty and “save[d] the court the inconvenience and necessity of a trial,” he would return to the grand jury to seek an indictment under the Kentucky Habitual Criminal Act, which would subject Hayes to a mandatory sentence of life imprisonment by reason of his two prior felony convictions. Hayes chose not to plead guilty, and the prosecutor did obtain an indictment charging him under the Habitual Criminal Act. It is not disputed that the recidivist charge was fully justified by the evidence, that the prosecutor was in possession of this evidence at the time of the original indictment, and that Hayes’ refusal to plead guilty to the original charge was what led to his indictment under the habitual criminal statute.
A jury found Hayes guilty on the principal charge of uttering a forged instrument and, in a separate proceeding, further found that he had twice before been convicted of felonies. As required by the habitual offender statute, he was sentenced to a life term in the penitentiary…
II
It may be helpful to clarify at the outset the nature of the issue in this case. While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do so was clearly expressed at the outset of the plea negotiations. Hayes was thus fully informed of the true terms of the offer when he made his decision to plead not guilty. This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant’s insistence on pleading not guilty. As a practical matter, in short, this case would be no different if the grand jury had indicted Hayes as a recidivist from the outset, and the prosecutor had offered to drop that charge as part of the plea bargain.
The Court of Appeals nonetheless drew a distinction between “concessions relating to prosecution under an existing indictment,” and threats to bring more severe charges not contained in the original indictment—a line it thought necessary in order to establish a prophylactic rule to guard against the evil of prosecutorial vindictiveness. Quite apart from this chronological distinction, however, the Court of Appeals found that the prosecutor had acted vindictively in the present case since he had conceded that the indictment was influenced by his desire to induce a guilty plea. The ultimate conclusion of the Court of Appeals thus seems to have been that a prosecutor acts vindictively and in violation of due process of law whenever his charging decision is influenced by what he hopes to gain in the course of plea bargaining negotiations.
III
We have recently had occasion to observe: “[W]hatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country’s criminal justice system. Properly administered, they can benefit all concerned.” Blackledge v. Allison (1977). The open acknowledgment of this previously clandestine practice has led this Court to recognize the importance of counsel during plea negotiations, the need for a public record indicating that a plea was knowingly and voluntarily made, and the requirement that a prosecutor’s plea-bargaining promise must be kept. The decision of the Court of Appeals in the present case, however, did not deal with considerations such as these, but held that the substance of the plea offer itself violated the limitations imposed by the Due Process Clause of the Fourteenth Amendment. For the reasons that follow, we have concluded that the Court of Appeals was mistaken in so ruling.
IV
This Court held in North Carolina v. Pearce (1969) that the Due Process Clause of the Fourteenth Amendment “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” The same principle was later applied to prohibit a prosecutor from reindicting a convicted misdemeanant on a felony charge after the defendant had invoked an appellate remedy, since in this situation there was also a “realistic likelihood of vindictiveness.” Blackledge v. Perry (1974).
In those cases the Court was dealing with the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction—a situation “very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.” …[I]n the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.
Plea bargaining flows from “the mutuality of advantage” to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial.
While confronting a defendant with the risk of more severe punishment clearly may have a “discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable”—and permissible—“attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.
It is not disputed here that Hayes was properly chargeable under the recidivist statute, since he had in fact been convicted of two previous felonies. In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Within the limits set by the legislature’s constitutionally valid definition of chargeable offenses, “the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation” so long as “the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” To hold that the prosecutor’s desire to induce a guilty plea is an “unjustifiable standard,” which, like race or religion, may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. Moreover, a rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged.
There is no doubt that the breadth of discretion that our country’s legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise. We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment.
Accordingly, the judgment of the Court of Appeals is
Reversed.
Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
…It might be argued that it really makes little difference how this case, now that it is here, is decided. The Court’s holding gives plea bargaining full sway despite vindictiveness. A contrary result, however, merely would prompt the aggressive prosecutor to bring the greater charge initially in every case, and only thereafter to bargain. The consequences to the accused would still be adverse, for then he would bargain against a greater charge, face the likelihood of increased bail, and run the risk that the court would be less inclined to accept a bargained plea. Nonetheless, it is far preferable to hold the prosecution to the charge it was originally content to bring and to justify in the eyes of its public.
[Blackmun added in a footnote:] That prosecutors, without saying so, may sometimes bring charges more serious than they think appropriate for the ultimate disposition of a case, in order to gain bargaining leverage with a defendant, does not add support to today’s decision, for this Court, in its approval of the advantages to be gained from plea negotiations, has never openly sanctioned such deliberate overcharging or taken such a cynical view of the bargaining process. Normally, of course, it is impossible to show that this is what the prosecutor is doing, and the courts necessarily have deferred to the prosecutor’s exercise of discretion in initial charging decisions.
Even if overcharging is to be sanctioned, there are strong reasons of fairness why the charges should be presented at the beginning of the bargaining process, rather than as a filliped threat at the end. First, it means that a prosecutor is required to reach a charging decision without any knowledge of the particular defendant’s willingness to plead guilty; hence the defendant who truly believes himself to be innocent, and wishes for that reason to go to trial, is not likely to be subject to quite such a devastating gamble since the prosecutor has fixed the incentives for the average case.
Second, it is healthful to keep charging practices visible to the general public, so that political bodies can judge whether the policy being followed is a fair one. Visibility is enhanced if the prosecutor is required to lay his cards on the table with an indictment of public record at the beginning of the bargaining process, rather than making use of unrecorded verbal warnings of more serious indictments yet to come.
Finally, I would question whether it is fair to pressure defendants to plead guilty by threat of reindictment on an enhanced charge for the same conduct when the defendant has no way of knowing whether the prosecutor would indeed be entitled to bring him to trial on the enhanced charge. Here, though there is no dispute that respondent met the then-current definition of a habitual offender under Kentucky law, it is conceivable that a properly instructed Kentucky grand jury, in response to the same considerations that ultimately moved the Kentucky Legislature to amend the habitual offender statute, would have refused to subject respondent to such an onerous penalty for his forgery charge. There is no indication in the record that, once the new indictment was obtained, respondent was given another chance to plead guilty to the forged check charge in exchange for a five-year sentence.
Mr. Justice POWELL, dissenting.
Although I agree with much of the Court’s opinion, I am not satisfied that the result in this case is just or that the conduct of the plea bargaining met the requirements of due process.
… It seems to me that the question to be asked under the circumstances is whether the prosecutor reasonably might have charged respondent under the Habitual Criminal Act in the first place. The deference that courts properly accord the exercise of a prosecutor’s discretion perhaps would foreclose judicial criticism if the prosecutor originally had sought an indictment under that Act, as unreasonable as it would have seemed. But here the prosecutor evidently made a reasonable, responsible judgment not to subject an individual to a mandatory life sentence when his only new offense had societal implications as limited as those accompanying the uttering of a single \$88 forged check and when the circumstances of his prior convictions confirmed the inappropriateness of applying the habitual criminal statute. I think it may be inferred that the prosecutor himself deemed it unreasonable and not in the public interest to put this defendant in jeopardy of a sentence of life imprisonment.
There may be situations in which a prosecutor would be fully justified in seeking a fresh indictment for a more serious offense. The most plausible justification might be that it would have been reasonable and in the public interest initially to have charged the defendant with the greater offense. In most cases a court could not know why the harsher indictment was sought, and an inquiry into the prosecutor’s motive would neither be indicated nor likely to be fruitful. In those cases, I would agree with the majority that the situation would not differ materially from one in which the higher charge was brought at the outset.
But this is not such a case. Here, any inquiry into the prosecutor’s purpose is made unnecessary by his candid acknowledgment that he threatened to procure and in fact procured the habitual criminal indictment because of respondent’s insistence on exercising his constitutional rights….
The plea-bargaining process, as recognized by this Court, is essential to the functioning of the criminal-justice system. It normally affords genuine benefits to defendants as well as to society. And if the system is to work effectively, prosecutors must be accorded the widest discretion, within constitutional limits, in conducting bargaining. This is especially true when a defendant is represented by counsel and presumably is fully advised of his rights. Only in the most exceptional case should a court conclude that the scales of the bargaining are so unevenly balanced as to arouse suspicion. In this case, the prosecutor’s actions denied respondent due process because their admitted purpose was to discourage and then to penalize with unique severity his exercise of constitutional rights. Implementation of a strategy calculated solely to deter the exercise of constitutional rights is not a constitutionally permissible exercise of discretion. I would affirm the opinion of the Court of Appeals on the facts of this case.
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Notes and questions on Bordenkircher v. Hayes
1. A guilty plea is a waiver of the defendant’s right to a trial. It relieves the prosecution of the burden of convincing a factfinder that the defendant is guilty. About 97% of criminal convictions in the federal system, and about 94% of state convictions, are the product of guilty pleas. These numbers have led the Supreme Court to observe, “[C]riminal justice today is for the most part a system of pleas, not a system of trials.” Laflerv. Cooper, 566 U.S. 156 (2012). In the federal system, guilty pleas are not only a large portion of convictions, but also a large portion of all cases: in 2018, about 90% of all federal defendants pled guilty. See John Gramlich, Only 2% of Federal Defendants Go To Trial, and Most Who Do Are Found Guilty (Pew Research Center, June 11, 2019). Because it involved a guilty plea, Hayes is far more representative of criminal cases than the many appellate opinions in this book that follow a bench or jury trial.
2. A guilty plea is also a waiver of the defendant’s constitutional right against self-incrimination and the right to confront witnesses. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself,” and a guilty plea is a literal and direct act of self-incrimination. The general legal requirement for waivers of constitutional rights is that the waiver must be voluntary, knowing, and intelligent. But the courts’ interpretations of “voluntary,” “knowing,” and “intelligent” vary depending on the context. The Supreme Court has made clear that the threat of a more severe sentence if one goes to trial does not render a plea involuntary. See Brady v. United States, 397 U.S. 742 (1970). In that case, Robert Brady was charged with the federal offense of kidnaping in 1959. At that time, the federal statute authorized the death penalty as a possible punishment for kidnaping, but only “if the verdict of the jury shall so recommend.” (See 18 U.S.C. § 1201(a), reprinted in footnote 1 of the opinion.) This meant that a defendant could avoid the risk of a death sentence by pleading guilty. Robert Brady later argued that the possibility of a death sentence if he went to trial created so much pressure to plead guilty that his plea was involuntary, but the Court rejected his claim.
3. Are guilty pleas subject to specific criteria or conditions in order to be valid resolutions of a criminal case? Although “knowing” and “voluntary” are often listed as separate requirements, many courts treat a knowing plea—that is, one made after the defendant is duly informed of the charges against him and other key details of the case—as necessarily voluntary. See, e.g., Wilson v. State, 577 So.2d 394, 396-97 (Miss. 1991) (“A plea is voluntary if the defendant knows what the elements are of the charge against him including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of his plea.”). The conception of voluntariness as a necessary implication of knowledge often leads to what might be called a procedural approach to the validity of pleas, in the sense that pleas are treated as valid when certain procedures are followed. One typical requirement is a “plea colloquy,” in which the defendant is addressed directly by the judge and asked if he understands certain aspects of the case. Federal Rule of Criminal Procedure 11 sets forth the guidelines for guilty pleas in the federal system, including the necessary components of the plea colloquy:
(a) Entering a Plea.
(1) In General. A defendant may plead not guilty, guilty, or (with the court’s consent) nolo contendere. …
(b) Considering and Accepting a Guilty or Nolo Contendere Plea.
(1) Advising and Questioning the Defendant. Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following:
(A) the government’s right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath;
(B) the right to plead not guilty, or having already so pleaded, to persist in that plea;
(C) the right to a jury trial;
(D) the right to be represented by counsel—and if necessary have the court appoint counsel—at trial and at every other stage of the proceeding;
(E) the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;
(F) the defendant’s waiver of these trial rights if the court accepts a plea of guilty or nolo contendere;
(G) the nature of each charge to which the defendant is pleading;
(H) any maximum possible penalty, including imprisonment, fine, and term of supervised release;
(I) any mandatory minimum penalty;
[various other sentencing considerations…]
(N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence; and
(O) that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.
(2) Ensuring That a Plea Is Voluntary. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).
(3) Determining the Factual Basis for a Plea. Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.
(c) Plea Agreement Procedure.
(1) In General. An attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will:
(A) not bring, or will move to dismiss, other charges;
(B) recommend, or agree not to oppose the defendant’s request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court); or
(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).
(2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera.
(3) Judicial Consideration of a Plea Agreement.
(A) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.
(B) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request. …
F.R.C.P. 11. Notice that the federal rule requires the court to determine that there is “a factual basis” for the guilty plea. Most states have a similar “factual basis” requirement, at least as a matter of written guidelines for pleas. In practice, there is considerable evidence of “fictional pleas.” Professor Thea Johnson describes a fictional plea as “a plea bargain agreement in which a defendant pleads guilty to a crime he did not commit, with the consent and knowledge of multiple actors in the criminal justice system.” Thea Johnson, Fictional Pleas, 94 Ind. L.J. 855, 857 (2019). Like other guilty pleas, a fictional plea may be a way for a defendant to obtain a more favorable outcome than would otherwise be available.
4. Note 2 above described the Supreme Court’s approach to voluntariness in Brady v. United States (1970); the Brady Court rejected the defendant’s argument that the fact that he could be sentenced to death if he went to trial, but not if he pled guilty, rendered his guilty plea involuntary. In Brady, the different penalties were determined by the applicable federal kidnapping statute. Hayes, decided several years after Brady, involved a slightly different situation in which the prosecutor could alter the potential sentence by choosing to charge under one statute rather than another. When a defendant who exercises the right to trial faces a more severe sentence than one who pleads guilty, commentators often characterize the situation as a “trial penalty,” or a “plea discount.” Whether penalty or discount is the better characterization depends in part on one’s view of the appropriate baseline. Do we assume each defendant will be sentenced to the harshest available penalty, in which case anything less is a discount? Or do we assume that most defendants will be sentenced to something less than maximum, in which case more severe sentences for those who go to trial does seem to punish the choice to go to trial? Whatever the best name for the practice, the Hayes Court found the imposition of a more severe sentence on a defendant who refused to plead guilty to be acceptable, in part because the Court characterized plea bargaining as a “give-and-take negotiation” in which “the prosecution and defense … possess relatively equal bargaining power.” In sharp contrast to the Supreme Court’s view of plea bargaining as a negotiation between equals, critics have characterized plea bargaining as coercive for decades. One memorable article compares plea bargaining to the medieval European use of judicially supervised torture to induce confessions. “There is, of course, a difference between having your limbs crushed if you refuse to confess, or suffering some extra years of imprisonment if you refuse to confess, but the difference is of degree, not kind. Plea bargaining, like torture, is coercive.” John Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3, 12-13 (1978).
5. Consider Hayes in relation to the aspects of prosecutorial discretion that you studied in Chapter Three. When more than one statute is potentially applicable to a defendant’s conduct, and when different statutes carry different penalties, what rules, if any, apply to the prosecutor’s charging decision?
6. Ultimately, if there is a plausible chance that a prosecutor could prevail at a trial—at least, if the defendant believes there is a plausible chance the prosecutor could prevail—then there exists a very strong incentive for the defendant to plead guilty. This incentive is especially powerful if the prosecutor can both raise the prospect of charging a more severe offense and offer an opportunity to secure a lesser penalty by pleading to a lesser offense. The charging decisions of a prosecutor (themselves made possible by earlier criminalization decisions by a legislature) can create sufficiently strong pressures to plead guilty that the adjudication decision becomes fairly insignificant in relation to the earlier criminalization and enforcement decisions. Here is one federal judge’s description of the usual dynamics of plea negotiations:
In the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to the prosecutor. If, as is very often the case … bail is set so high that the client is detained, the defense lawyer has only modest opportunities, within … limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts.
The prosecutor, by contrast, will typically have a full police report, complete with witness interviews and other evidence, shortly followed by grand jury testimony, forensic test reports, and follow-up investigations. While much of this may be one-sided and inaccurate … it not only gives the prosecutor a huge advantage over the defense counsel but also makes the prosecutor confident, maybe overconfident, of the strength of his case.
Against this background, the information-deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove. Indeed, until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved—unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge—but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources). Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.
In this typical situation, the prosecutor has all the advantages. He knows a lot about the case (and, as noted, probably feels more confident about it than he should, since he has only heard from one side), whereas the defense lawyer knows very little. Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion…. But what really puts the prosecutor in the driver’s seat is the fact that he—because of mandatory minimums, sentencing guidelines … and simply his ability to shape whatever charges are brought—can effectively dictate the sentence by how he publicly describes the offense. For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.
The defense lawyer understands this fully, and so she recognizes that the best outcome for her client is likely to be an early plea bargain, while the prosecutor is still willing to accept a plea to a relatively low-level offense. Indeed, in 2012, the average sentence for federal narcotics defendants who entered into any kind of plea bargain was five years and four months, while the average sentence for defendants who went to trial was sixteen years.
Jed Rakoff, Why Innocent People Plead Guilty, N.Y. Rev. Books (Nov. 20, 2014).
7. The first paragraph of the Rakoff excerpt above mentions bail and pretrial detention, noting that pretrial detention often makes it difficult for defense attorneys to gather necessary information about their clients. Bail practices are related to guilty pleas in other ways: a number of empirical studies have found that defendants who are detained pretrial are both more likely to be convicted (including convictions at trial) and more likely to plead guilty. It appears to be the detention itself, and not other factors such as prior offenses or severity of the charges, that increases the likelihood of a guilty plea. See, e.g., Samuel Wiseman, Bail and Mass Incarceration, 53 Ga. L. Rev. 235, 250252 (2018) (citing and summarizing research). Critics have pointed out that money bail systems disproportionately impact poor people of color, who often must choose between an extended jail stay as they wait for trial or a quick guilty plea and the ensuing consequences of conviction. See, e.g., Jocelyn Simonson, Bail Nullification, 115 Mich. L. Rev. 585 (2017).
8. Paul Lewis Hayes, the defendant in the case above, was sentenced to life imprisonment for forging a check in the amount of \$88.30. The life sentence was mandated by Kentucky’s Habitual Criminal Act, a statute akin to the “Three Strikes” laws you may have heard discussed today. These laws provide for severe sentences when a defendant is convicted of a third (or greater) offense. The Kentucky law made a life sentence “mandatory” upon a third felony conviction, but it is important to identify the discretion – the enforcement choices – that led to Hayes’s life sentence. The prosecutor could choose whether to seek an indictment under the Habitual Criminal Act, and he initially did not do so. The “mandatory” life sentence was thus a product of the prosecutor’s choice, after Hayes refused to plead, to apply the Habitual Criminal Act.
9. At least one of Hayes’s prior convictions was itself the product of a guilty plea obtained when Hayes was 17 years old; in that case Hayes had denied participating in the crime but agreed to plead guilty anyway. For more background on Bordenkircherv. Hayes and a discussion of the case’s contribution to mass incarceration, see William J. Stuntz, Bordenkircher v. Hayes: Plea Bargaining and the Decline of the Rule of Law, in Criminal Procedure Stories (Carol Steiker ed., 2006). Stuntz gives some background on the racial dynamics of the case – Hayes was a Black man with prior convictions, and Kentucky in 1973 was “not a racially enlightened place.” Id. at 355. At the federal appeals court, Judge Wade McCree Jr., the first Black judge on the Sixth Circuit Court of Appeals, agreed with Hayes that the prosecutor’s choice to pursue a life sentence was “vindictive” and unconstitutional. Of course, the Supreme Court later reversed Judge McCree. More broadly, Stuntz argues that Bordenkircherv. Hayeshelped contribute to mass incarceration:
Even if Hayes’s lawyers had made precisely the right arguments at precisely the right times, and even if the Court had heeded those arguments, ours would still be a society where criminal punishment is a massive industry, of a size and severity unknown anywhere else in the democratic world. But the Court’s decision does bear some responsibility for the punitive turn America’s criminal justice system has taken—for its harshness, for the sheer magnitude of our two-million-plus inmate population. Also for the inexorable rise of plea bargaining, now the means by which nearly nineteen of every twenty convicted felons reach that status. … As the prisoners have multiplied, laws have multiplied as well, adding more criminal prohibitions and harsher sentences to criminal codes. As those bodies of law have grown in size, they have shrunk in consequence. In the criminal justice system, the men and women who work in district attorneys’ offices increasingly rule. The law no longer does. Anyone who wants to understand how that happened would do well to start by studying an obscure case from the 1970s in Lexington, Kentucky.
Stuntz, Plea Bargaining and the Decline of the Rule of Law, at 379.
Appellate Adjudication: Ways to Revise Criminalization, Enforcement, or Conviction Decisions
So far, this chapter has focused on adjudication decisions at the trial court level: the decision of a jury or a judge serving as fact-finder in a bench trial to convict a defendant, or the decision of a defendant to plead guilty and waive the right to a trial. But none of the judicial opinions you’ve read thus far come from trial courts; almost every case in this book comes from an appellate court. It may be a good time to think again about the role of appellate opinions in this book. As explained in Chapter One, most criminal cases don’t go to an appellate court or produce an appellate opinion, but appellate court opinions make good teaching tools and are standard fare for law school courses. This book does not depart from the tradition of teaching law primarily through appellate opinions, but it does seek to put those opinions in context. Again, you should think of the cases in this book as case studies. They are not assigned to you because the words of appellate courts are the only or most important sources of criminal law; rather, appellate cases are selected and included here because each provides a concrete illustration of various aspects of criminal law in practice. Cases give us stories and real-world examples through which to learn criminal law—a concrete set of facts, a particular statute, specific pieces of evidence, and the actual decisions of various actors within the criminal legal system. Moreover, appellate opinions, more than many other important legal documents, often make explicit the arguments that lawyers have made on behalf of their clients. Making arguments about statutes, or about evidence, or about constitutional principles, is one of the key skills that you need to learn, and close analysis of appellate opinions can help you develop this skill.
There is an additional reason to read appellate cases: appellate adjudication—in that fraction of criminal cases where it does take place—is an important part of the legal process, in part because it gives appellate courts a chance to revise or reverse earlier criminalization, enforcement, or adjudication decisions. The cases in this book provide you with many different types of appellate arguments, but a few standard types of argument will recur often, such as sufficiency of evidence claims (as you saw in Owens), challenges to jury instructions (as in State v. O’Brien, discussed in the notes after Winship, above), constitutional challenges (as you have seen in Winship, City of Chicago v. Morales, Lambert v. California, and other cases); and statutory interpretation arguments (as you saw in Morissette in Chapter Two). Because crimes are defined by statute, statutory interpretation is an important skill in criminal law. The next case offers a much deeper look at statutory interpretation, and also illustrates the power of appellate courts in the criminal process.
[The key statutory provision is quoted at the beginning of the opinion below.]
John L. YATES, Petitioner
v.
UNITED STATES
Supreme Court of the United States
574 U.S. 528
Decided Feb. 25, 2015
Justice GINSBURG announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, Justice BREYER, and Justice SOTOMAYOR join.
John Yates, a commercial fisherman, caught undersized red grouper in federal waters in the Gulf of Mexico. To prevent federal authorities from confirming that he had harvested undersized fish, Yates ordered a crew member to toss the suspect catch into the sea. For this offense, he was charged with, and convicted of, violating 18 U.S.C. § 1519, which provides:
“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”
… Yates … maintains that fish are not trapped within the term “tangible object,” as that term is used in § 1519.
Section 1519 was enacted as part of the Sarbanes–Oxley Act of 2002, legislation designed to protect investors and restore trust in financial markets following the collapse of Enron Corporation. A fish is no doubt an object that is tangible; fish can be seen, caught, and handled, and a catch, as this case illustrates, is vulnerable to destruction. But it would cut § 1519 loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent. Mindful that in Sarbanes–Oxley, Congress trained its attention on corporate and accounting deception and coverups, we conclude that a matching construction of § 1519 is in order: A tangible object captured by § 1519, we hold, must be one used to record or preserve information.
I
On August 23, 2007, the Miss Katie, a commercial fishing boat, was six days into an expedition in the Gulf of Mexico. … Officer John Jones of the Florida Fish and Wildlife Conservation Commission decided to board the Miss Katie to check on the vessel’s compliance with fishing rules. … Because he had been deputized as a federal agent…, Officer Jones had authority to enforce federal, as well as state, fishing laws.
Upon boarding the Miss Katie, Officer Jones noticed three red grouper that appeared to be undersized hanging from a hook on the deck. At the time, federal conservation regulations required immediate release of red grouper less than 20 inches long. Violation of those regulations is a civil offense punishable by a fine or fishing license suspension.
Suspecting that other undersized fish might be on board, Officer Jones proceeded to inspect the ship’s catch…. Officer Jones ultimately determined that 72 fish fell short of the 20–inch mark. A fellow officer recorded the length of each of the undersized fish on a catch measurement verification form. With few exceptions, the measured fish were between 19 and 20 inches; … none were less than 18.75 inches. After separating the fish measuring below 20 inches from the rest of the catch by placing them in wooden crates, Officer Jones directed Yates to leave the fish … in the crates until the Miss Katie returned to port. Before departing, Officer Jones issued Yates a citation for possession of undersized fish.
Four days later, after the Miss Katie had docked… Officer Jones measured the fish contained in the wooden crates. This time, however, the measured fish, although still less than 20 inches, slightly exceeded the lengths recorded on board…. Under questioning, one of the crew members admitted that, at Yates’s direction, he had thrown overboard the fish Officer Jones had measured at sea, and that he and Yates had replaced the tossed grouper with fish from the rest of the catch.
For reasons not disclosed in the record before us, more than 32 months passed before criminal charges were lodged against Yates. On May 5, 2010, he was indicted… By the time of the indictment, the minimum legal length for Gulf red grouper had been lowered from 20 inches to 18 inches. No measured fish in Yates’s catch fell below that limit. The record does not reveal what civil penalty, if any, Yates received for his possession of fish undersized under the 2007 regulation.
Yates was tried on the criminal charges in August 2011 [and convicted. The court] sentenced Yates to imprisonment for 30 days, followed by supervised release for three years. For life, he will bear the stigma of having a federal felony conviction….
II
The Sarbanes–Oxley Act, all agree, was prompted by the exposure of Enron’s massive accounting fraud and revelations that the company’s outside auditor, Arthur Andersen LLP, had systematically destroyed potentially incriminating documents. The Government acknowledges that § 1519 was intended to prohibit, in particular, corporate document-shredding to hide evidence of financial wrongdoing….
In the Government’s view, § 1519 extends beyond the principal evil motivating its passage. The words of § 1519, the Government argues, support reading the provision as a general ban on the spoliation of evidence, covering all physical items that might be relevant to any matter under federal investigation.
Yates urges a contextual reading of § 1519…. Section 1519, he maintains, targets not all manner of evidence, but records, documents, and tangible objects used to preserve them, e.g., computers, servers, and other media on which information is stored….
A
The ordinary meaning of an “object” that is “tangible,” as stated in dictionary definitions, is “a discrete … thing,” Webster’s Third New International Dictionary 1555 (2002), that “possess[es] physical form,” Black’s Law Dictionary 1683 (10th ed. 2014). From this premise, the Government concludes that “tangible object,” as that term appears in § 1519, covers the waterfront, including fish from the sea.
Whether a statutory term is unambiguous, however, does not turn solely on dictionary definitions of its component words. Rather, “[t]he plainness or ambiguity of statutory language is determined [not only] by reference to the language itself, [but as well by] the specific context in which that language is used, and the broader context of the statute as a whole.” … Ordinarily, a word’s usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts, sometimes mean different things.
We have several times affirmed that identical language may convey varying content when used in different statutes, sometimes even in different provisions of the same statute…. “Where the subject matter to which the words refer is not the same in the several places where [the words] are used, or the conditions are different, or the scope of the legislative power exercised in one case is broader than that exercised in another, the meaning well may vary to meet the purposes of the law, to be arrived at by a consideration of the language in which those purposes are expressed, and of the circumstances under which the language was employed.” In short, although dictionary definitions of the words “tangible” and “object” bear consideration, they are not dispositive of the meaning of “tangible object” in § 1519.
Supporting a reading of “tangible object,” as used in § 1519, in accord with dictionary definitions, the Government points to the appearance of that term in Federal Rule of Criminal Procedure 16. That Rule requires the prosecution to grant a defendant’s request to inspect “tangible objects” within the Government’s control that have utility for the defense. Rule 16’s reference to “tangible objects” has been interpreted to include any physical evidence. Rule 16 is a discovery rule designed to protect defendants by compelling the prosecution to turn over to the defense evidence material to the charges at issue. In that context, a comprehensive construction of “tangible objects” is fitting. In contrast, § 1519 is a penal provision that refers to “tangible object” not in relation to a request for information relevant to a specific court proceeding, but rather in relation to federal investigations or proceedings of every kind, including those not yet begun. See Commissioner v. National Carbide Corp., 167 F.2d 304, 306 (2nd Cir.1948) (Hand, J.) (“words are chameleons, which reflect the color of their environment”). Just as the context of Rule 16 supports giving “tangible object” a meaning as broad as its dictionary definition, the context of § 1519 tugs strongly in favor of a narrower reading.
B
Familiar interpretive guides aid our construction of the words “tangible object” as they appear in § 1519.
We note first § 1519’s caption: “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy.” That heading conveys no suggestion that the section prohibits spoliation of any and all physical evidence, however remote from records. …[T]he title of the section of the Sarbanes–Oxley Act in which § 1519 was placed refers to “Criminal penalties for altering documents,” [and] the only other provision [in that section] is titled “Destruction of corporate audit records”…. While these headings are not commanding, they supply cues that Congress did not intend “tangible object” in § 1519 to sweep within its reach physical objects of every kind, including things no one would describe as records, documents, or devices closely associated with them. If Congress indeed meant to make § 1519 an all-encompassing ban on the spoliation of evidence, as the dissent believes Congress did, one would have expected a clearer indication of that intent.
… The contemporaneous passage of § 1512(c)(1), [in another] section of the Sarbanes–Oxley Act … is also instructive. Section 1512(c)(1) provides: “Whoever corruptly … alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding … shall be fined under this title or imprisoned not more than 20 years, or both.” … The Government argues, and Yates does not dispute, that § 1512(c)(1)’s reference to “other object” includes any and every physical object. But if §1519’s reference to “tangible object” already included all physical objects, as the Government and the dissent contend, then Congress had no reason to enact § 1512(c)(1): Virtually any act that would violate § 1512(c)(1) no doubt would violate § 1519 as well. See Marx v. General Revenue Corp. (2013) (“[T]he canon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme.”).
… The words immediately surrounding “tangible object” in § 1519—“falsifies, or makes a false entry in any record [or] document”—also cabin the contextual meaning of that term. As explained in Gustafson v. AlloydCo. (1995), we rely on the principle of noscitur a sociis—a word is known by the company it keeps—to “avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving unintended breadth to the Acts of Congress.” In Gustafson, we interpreted the word “communication” in § 2(10) of the Securities Act of 1933 to refer to a public communication, rather than any communication, because the word appeared in a list with other words, notably “notice, circular, [and] advertisement,” making it “apparent that the list refer[red] to documents of wide dissemination.” And we did so even though the list began with the word “any.”
The noscitur a sociis canon operates in a similar manner here. “Tangible object” is the last in a list of terms that begins “any record [or] document.” The term is therefore appropriately read to refer, not to any tangible object, but specifically to the subset of tangible objects involving records and documents, i.e., objects used to record or preserve information….
This moderate interpretation of “tangible object” accords with the list of actions § 1519 proscribes. The section applies to anyone who “alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the requisite obstructive intent. (Emphasis added.) The last two verbs, “falsif[y]” and “mak[e] a false entry in,” typically take as grammatical objects records, documents, or things used to record or preserve information, such as logbooks or hard drives. See, e.g., Black’s Law Dictionary 720 (10th ed. 2014) (defining “falsify” as “[t]o make deceptive; to counterfeit, forge, or misrepresent; esp., to tamper with (a document, record, etc.)”). It would be unnatural, for example, to describe a killer’s act of wiping his fingerprints from a gun as “falsifying” the murder weapon. But it would not be strange to refer to “falsifying” data stored on a hard drive as simply “falsifying” a hard drive….
A canon related to noscitur a sociis, ejusdem generis, counsels: “[W] here general words follow specific words in a statutory enumeration, the general words are [usually] construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” … Had Congress intended “tangible object” in § 1519 to be interpreted so generically as to capture physical objects as dissimilar as documents and fish, Congress would have had no reason to refer specifically to “record” or “document.” The Government’s unbounded reading of “tangible object” would render those words misleading surplusage.
Having used traditional tools of statutory interpretation to examine markers of congressional intent within the Sarbanes–Oxley Act and § 1519 itself, we are persuaded that an aggressive interpretation of “tangible object” must be rejected. It is highly improbable that Congress would have buried a general spoliation statute covering objects of any and every kind in a provision targeting fraud in financial recordkeeping.
The Government argues, however, that our inquiry would be incomplete if we failed to consider the origins of the phrase “record, document, or tangible object.” Congress drew that phrase, the Government says, from a 1962 Model Penal Code (MPC) provision, and reform proposals based on that provision. The MPC provision and proposals prompted by it would have imposed liability on anyone who “alters, destroys, mutilates, conceals, or removes a record, document or thing.” Those proscriptions were understood to refer to all physical evidence. See MPC § 241.7, Comment 3 (1980)… Accordingly, the Government reasons, and the dissent exuberantly agrees, Congress must have intended § 1519 to apply to the universe of physical evidence.
The inference is unwarranted. True, the 1962 MPC provision prohibited tampering with any kind of physical evidence. But unlike § 1519, the MPC provision did not prohibit actions that specifically relate to records, documents, and objects used to record or preserve information. The MPC provision also ranked the offense as a misdemeanor and limited liability to instances in which the actor “believ[es] that an official proceeding or investigation is pending or about to be instituted.” Yates would have had scant reason to anticipate a felony prosecution, and certainly not one instituted at a time when even the smallest of the fish he caught came within the legal limit. A proposed federal offense in line with the MPC provision, advanced by a federal commission in 1971, was similarly qualified.
Section 1519 conspicuously lacks the limits built into the MPC provision and the federal proposal. It describes not a misdemeanor, but a felony punishable by up to 20 years in prison. And the section covers conduct intended to impede any federal investigation or proceeding, including one not even on the verge of commencement. Given these significant differences, the meaning of “record, document, or thing” in the MPC provision and a kindred proposal is not a reliable indicator of the meaning Congress assigned to “record, document, or tangible object” in § 1519. The MPC provision, in short, tells us neither “what Congress wrote [nor] what Congress wanted,” concerning Yates’s small fish as the subject of a federal felony prosecution.
C
Finally, if our recourse to traditional tools of statutory construction leaves any doubt about the meaning of “tangible object,” as that term is used in § 1519, we would invoke the rule that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” That interpretative principle is relevant here, where the Government urges a reading of § 1519 that exposes individuals to 20–year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense, no matter whether the investigation is pending or merely contemplated, or whether the offense subject to investigation is criminal or civil. See Liparotav. United States (1985) (“Application of the rule of lenity ensures that criminal statutes will provide fair warning concerning conduct rendered illegal and strikes the appropriate balance between the legislature, the prosecutor, and the court in defining criminal liability.”). In determining the meaning of “tangible object” in § 1519, “it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.”
For the reasons stated, we resist reading § 1519 expansively to create a coverall spoliation of evidence statute, advisable as such a measure might be. Leaving that important decision to Congress, we hold that a “tangible object” within § 1519’s compass is one used to record or preserve information. The judgment of the U.S. Court of Appeals for the Eleventh Circuit is therefore reversed, and the case is remanded for further proceedings.
It is so ordered.
[Opinion of Justice ALITO, concurring in the judgment, omitted.]
Justice KAGAN, with whom Justice SCALIA, Justice KENNEDY, and Justice THOMAS join, dissenting.
… This case raises the question whether the term “tangible object” means the same thing in § 1519 as it means in everyday language—any object capable of being touched. The answer should be easy: Yes. The term “tangible object” is broad, but clear…. I would apply the statute that Congress enacted and affirm the judgment below.
I
While the plurality starts its analysis with § 1519’s heading, I would begin with § 1519’s text. When Congress has not supplied a definition, we generally give a statutory term its ordinary meaning. As the plurality must acknowledge, the ordinary meaning of “tangible object” is “a discrete thing that possesses physical form.” A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). So the ordinary meaning of the term “tangible object” in § 1519, as no one here disputes, covers fish (including too-small red grouper).
That interpretation accords with endless uses of the term in statute and rule books…. Dozens of federal laws and rules of procedure (and hundreds of state enactments) include the term “tangible object” or its first cousin “tangible thing”—some in association with documents, others not….
That is not necessarily the end of the matter; I agree with the plurality (really, who doesn’t?) that context matters in interpreting statutes. We do not “construe the meaning of statutory terms in a vacuum.” Rather, we interpret particular words “in their context and with a view to their place in the overall statutory scheme.” And sometimes that means, as the plurality says, that the dictionary definition of a disputed term cannot control. But this is not such an occasion, for here the text and its context point the same way. Stepping back from the words “tangible object” provides only further evidence that Congress said what it meant and meant what it said.
Begin with the way the surrounding words in § 1519 reinforce the breadth of the term at issue. Section 1519 refers to “any” tangible object, thus indicating (in line with that word’s plain meaning) a tangible object “of whatever kind.” Webster’s Third New International Dictionary 97 (2002). This Court has time and again recognized that “any” has “an expansive meaning,” bringing within a statute’s reach all types of the item (here, “tangible object”) to which the law refers. And the adjacent laundry list of verbs in § 1519 (“alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry”) further shows that Congress wrote a statute with a wide scope. Those words are supposed to ensure—just as “tangible object” is meant to—that § 1519 covers the whole world of evidence-tampering, in all its prodigious variety….
Still more, “tangible object” appears as part of a three-noun phrase (including also “records” and “documents”) common to evidence-tampering laws and always understood to embrace things of all kinds. The Model Penal Code’s evidence-tampering section, drafted more than 50 years ago, similarly prohibits a person from “alter[ing], destroy[ing], conceal[ing] or remov[ing] any record, document or thing ” in an effort to thwart an official investigation or proceeding. The Code’s commentary emphasizes that the offense described in that provision is “not limited to conduct that [alters] a written instrument.” Rather, the language extends to “any physical object.” Consistent with that statement—and, of course, with ordinary meaning—courts in the more than 15 States that have laws based on the Model Code’s tampering provision apply them to all tangible objects, including drugs, guns, vehicles and … yes, animals.
… And legislative history, for those who care about it, puts extra icing on a cake already frosted. Section 1519, as the plurality notes, was enacted after the Enron Corporation’s collapse, as part of the Sarbanes–Oxley Act of 2002. But the provision began its life in a separate bill, and the drafters emphasized that Enron was “only a case study exposing the shortcomings in our current laws” relating to both “corporate and criminal” fraud. The primary “loophole[ ]” Congress identified [in the law prior to Sarbanes-Oxley was that it] prohibited a person from inducing another to destroy “record[s], document[s], or other object[s]”—of every type—but not from doing so himself. Congress … enacted § 1519 to close that yawning gap…. And so § 1519 was written to do exactly that—“to apply broadly to any acts to destroy or fabricate physical evidence,” as long as performed with the requisite intent. “When a person destroys evidence,” the drafters explained, “overly technical legal distinctions should neither hinder nor prevent prosecution.” Ah well: Congress, meet today’s Court, which here invents just such a distinction with just such an effect. …
As Congress recognized in using a broad term, giving immunity to those who destroy non-documentary evidence has no sensible basis in penal policy. A person who hides a murder victim’s body is no less culpable than one who burns the victim’s diary. A fisherman, like John Yates, who dumps undersized fish to avoid a fine is no less blameworthy than one who shreds his vessel’s catch log for the same reason. Congress thus treated both offenders in the same way. It understood, in enacting § 1519, that destroying evidence is destroying evidence, whether or not that evidence takes documentary form.
II
The plurality searches far and wide for anything—anything—to support its interpretation of § 1519. But its fishing expedition comes up empty.
The plurality’s analysis starts with § 1519’s title: “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy.” That’s already a sign something is amiss. I know of no other case in which we have begun our interpretation of a statute with the title, or relied on a title to override the law’s clear terms. Instead, we have followed “the wise rule that the title of a statute and the heading of a section cannot limit the plain meaning of the text.” …The reason for that “wise rule” is easy to see: A title is, almost necessarily, an abridgment.…
The plurality’s [reliance] on the surplusage canon[] at least invokes a known tool of statutory construction—but it too comes to nothing. Says the plurality: If read naturally, § 1519 “would render superfluous” § 1512(c)(1) which Congress passed “as part of the same Act.” But that is not so: Although the two provisions significantly overlap, each applies to conduct the other does not. … Overlap—even significant overlap—abounds in the criminal law. This Court has never thought that of such ordinary stuff surplusage is made. …
… Section 1512(c)(1) criminalizes the destruction of any “record, document, or other object”; § 1519 of any “record, document, or tangible object.” On the plurality’s view, one “object” is really an object, whereas the other is only an object that preserves or stores information. But “[t]he normal rule of statutory construction assumes that identical words used in different parts of the same act,” passed at the same time, “are intended to have the same meaning.” And that is especially true when the different provisions pertain to the same subject. The plurality doesn’t—really, can’t—explain why it instead interprets the same words used in two provisions of the same Act addressing the same basic problem to mean fundamentally different things.
Getting nowhere with surplusage, the plurality switches canons, hoping that noscitur a sociis and ejusdem generis will save it. The first of those related canons advises that words grouped in a list be given similar meanings. The second counsels that a general term following specific words embraces only things of a similar kind. According to the plurality, those Latin maxims change the English meaning of “tangible object” to only things, like records and documents, “used to record or preserve information.” But understood as this Court always has, the canons have no such transformative effect on the workaday language Congress chose.
As an initial matter, this Court uses noscitur a sociis and ejusdem generis to resolve ambiguity, not create it. Those principles are “useful rule[s] of construction where words are of obscure or doubtful meaning.” But when words have a clear definition, and all other contextual clues support that meaning, the canons cannot properly defeat Congress’s decision to draft broad legislation.
Anyway, assigning “tangible object” its ordinary meaning comports with noscitur a sociis and ejusdem generis when applied, as they should be, with attention to § 1519’s subject and purpose. Those canons require identifying a common trait that links all the words in a statutory phrase. In responding to that demand, the plurality characterizes records and documents as things that preserve information—and so they are. But just as much, they are things that provide information, and thus potentially serve as evidence relevant to matters under review. And in a statute pertaining to obstruction of federal investigations, that evidentiary function comes to the fore. The destruction of records and documents prevents law enforcement agents from gathering facts relevant to official inquiries. And so too does the destruction of tangible objects—of whatever kind. Whether the item is a fisherman’s ledger or an undersized fish, throwing it overboard has the identical effect on the administration of justice. For purposes of § 1519, records, documents, and (all) tangible objects are therefore alike….
Finally, when all else fails, the plurality invokes the rule of lenity. But even in its most robust form, that rule only kicks in when, “after all legitimate tools of interpretation have been exhausted, ‘a reasonable doubt persists’ regarding whether Congress has made the defendant’s conduct a federal crime.” No such doubt lingers here. The plurality points to the breadth of § 1519 as though breadth were equivalent to ambiguity. It is not. Section 1519 is very broad. It is also very clear. Every traditional tool of statutory interpretation points in the same direction, toward “object” meaning object. Lenity offers no proper refuge from that straightforward (even though capacious) construction.
III
If none of the traditional tools of statutory interpretation can produce today’s result, then what accounts for it? The plurality offers a clue when it emphasizes the disproportionate penalties § 1519 imposes if the law is read broadly. Section 1519, the plurality objects, would then “expose[ ] individuals to 20–year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense.” That brings to the surface the real issue: overcriminalization and excessive punishment in the U.S. Code.
Now as to this statute, I think the plurality somewhat—though only somewhat—exaggerates the matter. The plurality omits from its description of § 1519 the requirement that a person act “knowingly” and with “the intent to impede, obstruct, or influence” federal law enforcement. And in highlighting § 1519’s maximum penalty, the plurality glosses over the absence of any prescribed minimum. (Let’s not forget that Yates’s sentence was not 20 years, but 30 days.) Congress presumably enacts laws with high maximums and no minimums when it thinks the prohibited conduct may run the gamut from major to minor. That is assuredly true of acts obstructing justice. Compare this case with the following, all of which properly come within, but now fall outside, § 1519: United States v. McRae (5th Cir. 2012) (burning human body to thwart murder investigation); United States v. Maury (3rd Cir. 2012) (altering cement mixer to impede inquiry into amputation of employee’s fingers); United States v. Natal (D.Conn., Aug. 7, 2014) (repainting van to cover up evidence of fatal arson). Most district judges, as Congress knows, will recognize differences between such cases and prosecutions like this one, and will try to make the punishment fit the crime. Still and all, I tend to think, for the reasons the plurality gives, that § 1519 is a bad law—too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, § 1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.
But whatever the wisdom or folly of § 1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design.
I respectfully dissent.
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Notes and questions on Yates
1. The Supreme Court’s opinion focuses on 18 U.S.C. § 1519, but Yates was also charged and convicted with a violation of another federal statute, 18 U.S.C. § 2232(a), which criminalizes destruction of property to prevent a seizure and authorizes a maximum penalty of five years. The § 2232(a) conviction was not part of the appeal to the Supreme Court. Why might enforcement officials have chosen to charge both offenses? Why might Yates have appealed only the § 1519 conviction?
2. “A fish is no doubt an object that is tangible,” Justice Ginsburg writes for the plurality, but the Court concludes that a fish is not “[a] tangible object captured by § 1519” (emphasis added). That is, “tangible object” within the statute may not have the same meaning that the phrase would have outside of the specific statutory context. Or, as put by Judge Learned Hand and quoted by the Yates plurality, “words are chameleons, which reflect the color of their environment.”
3. Because words are chameleons, they need to be interpreted. We first considered statutory interpretation when we were considering criminalization decisions in Chapter Two. Recall the Supreme Court’s analysis of the federal knowing conversion statute in Morissette v. United States. Through statutory interpretation, appellate courts participate in criminalization decisions (because they decide what types of conduct are covered by a given statute), enforcement decisions (because they decide whether a statute applies to a particular defendant), and adjudication decisions (because the reviewing court has the power to reverse a conviction on the ground that the initial decision to convict was based on an incorrect interpretation of the statute).But notice: appellate courts are not the only actors that engage in statutory interpretation. Long before this case reached the Supreme Court, a federal prosecutor had to decide that the Sarbanes-Oxley Act, which was indeed passed to address corporate fraud after the collapse of Enron, was also applicable to a fisherman who discarded undersized fish.That is, statutory interpretation is often part of an enforcement decision. When you consider whether a given statute might apply to a particular defendant’s conduct, you should think about the different ways the statute might be interpretedby enforcement officials, defense attorneys, and (eventually) a court. How might a prosecutor interpret it to apply to the defendant’s conduct? Is there a different plausible interpretation that a defense lawyer might urge, one that would make the statute inapplicable to the defendant?
4. Both the plurality and dissenting opinions refer to “traditional tools of statutory construction.” What are these tools of construction? You should identify the various principles or canons applied throughout the case, and try to be sure you understand each one. These “tools” will be hammers, screwdrivers, and wrenches that you may need as you analyze a statute and construct your own arguments about what the statute means. Among the tools to consider: noscitur a sociisejusdem generis, ordinary meaning, surplusage, and legislative history.
5. Justice Kagan says (twice! In Part I, and again in Part II of her dissent) that the plurality “starts” or “begins” its analysis with the title of § 1519—with the brief title of the section of the statute. To Kagan, this initial focus on the title is a mistake, because statutory interpretation should begin with the text of the operative portion of the statute. But look again at the plurality opinion. The discussion of the title, or “caption,” of 1519 comes in Part II.B of the plurality opinion, afterthe plurality has discussed the “ordinary meaning” of the phrase “tangible object” in Part II.A. Did the plurality reorganize its opinion after seeing a preliminary draft of Justice Kagan’s dissent? Or did Justice Kagan just not notice that the plurality did, in fact, discuss the plain language of § 1519 before discussing the title or caption? It’s difficult to know, but either way, this contradiction should remind us that judicial opinions are the work of human beings, crafted to persuade their readers of the rightness of their conclusions. Keep this in mind as you read appellate opinions. All judges, even the most brilliant judges in the country, are human beings, and the proclamations of appellate courts should not be mistaken for the mechanical product of an impersonal, extra-human adjudicator.
6. Consider Part III of Justice Kagan’s dissent carefully. She says that she agrees with the plurality that § 1519 is “a bad law,” and “an emblem of a deeper pathology within the federal criminal code.” What is this pathology, and why doesn’t Justice Kagan think the Court can do anything about it? (But also, compare Part III of Kagan’s dissent to the last paragraph of Part I. In Part I of the dissent, does Kagan suggest that § 1519 is a bad law, or a necessary and wise one?)
Key Decisions and Key Arguments
You have now looked closely at three types of decisions that are important to criminal law: decisions to criminalize conduct, decisions to enforce a statute against a particular person, and decisions to convict (or acquit) a defendant at the adjudication stage. You should be able to see all of these types of decisions at work in the cases you read in the remainder of the book. Now that you know the key types of decisions that public officials must make to convict someone of a crime, it may be useful to begin thinking explicitly about types of arguments that lawyers make to try to influence those decisions.
Start with the prosecutor, who is both a public official empowered to make enforcement decisions and also a lawyer who must make arguments to courts. At the most basic level, the prosecutor must argue that the evidence presented establishes proof of each element of any offense charged. Of course, to make this argument, the prosecutor must have an interpretation of the relevant statute and an argument about what elements are included within the statute. Sometimes, the elements will be clear and uncontested; at other times, the prosecution may advance a more novel or controversial reading of a statute.
Now consider defense arguments. So far, you have seen a few cases involving what might be called “failure of proof” arguments, and also cases involving constitutional challenges. A failure of proof argument is a claim that the prosecution has not met its burden to prove each element of the crime beyond a reasonable doubt. A failure of proof argument could focus on the sufficiency of the evidence, on the correct interpretation of the statute, or both. In Owens in this chapter, the defense argued that the drunk driving statute, properly interpreted, required proof of driving on public roads, and then the defense argued that the prosecution had not introduced sufficient evidence that the defendant had actually driven on a public road while intoxicated. Failure of proof arguments sometimes are framed as challenges to jury instructions, as in Morissette v. United States. The defense argued that the federal knowing conversion statute, properly interpreted, required proof that the defendant knew he was taking property that belonged to someone else. The defense then argued that since Morissette’s jury had not been instructed properly about the mental state elements of the offense, the jury’s decision to convict was not legally sound – the jury had not determined that the prosecution had proven all relevant elements (since the jury did not know all the relevant elements).
You have also read several cases in which the defense does not focus on the elements of the charged offense, but instead makes an argument that the criminalization, enforcement, or adjudication decisions made in his case violate some aspect of the federal constitution. For example, in Lambert v. California, the defense argued that to criminalize inaction of malum prohibitum conduct (failure to register), without requiring knowledge of a duty to act, was a violation of the Due Process Clause of the Fourteenth Amendment. In City of Chicago v. Morales, the defendants challenged both criminalization and enforcement decisions, arguing that the city of Chicago had enacted a statute that was so broad that it gave enforcement officials unconstitutionally wide discretion. In United States v. Armstrong, the defense argued that prosecutors had selected Armstrong for prosecution on the basis of his race, in violation of the Equal Protection Clause of the federal constitution. And in Winship in this chapter, the defense argued that the New York state juvenile court had reached its adjudication decision in violation of the Due Process Clause, since it had used a preponderance of the evidence standard rather than proof beyond a reasonable doubt.
Of course, each side needs to respond to the arguments of the other side. Once the defense raises constitutional arguments, the prosecution will need to respond to them.
In the next chapters, you will encounter another type of defense argument: the affirmative defense. Criminal law includes some doctrines, such as self-defense and insanity, that permit a defendant to concede that evidence establishes the elements of the charged offense, but argue against conviction nonetheless. These doctrines are called affirmative defenses, and we’ll explore them in more detail in later chapters.
For now, your goal should be to begin thinking about the types of arguments lawyers make to influence legal decision-makers – including prosecutors, trial courts, juries, and appellate courts. Think about the types of arguments, and how different arguments might be combined. Examples of defense arguments from the cases you’ve read:
• Given a correct interpretation of the relevant statute, the jury was not properly instructed and thus the prosecution cannot show that it met its burden of proof. (Morissette)
• Given a correct interpretation of the relevant statute, the evidence presented to the fact-finder was insufficient to prove all elements beyond a reasonable doubt. (Owens; Yates)
• The enforcement decisions of the prosecutor violated a constitutional right. (Cissell; Armstrong; Bordenkircherv. Hayes) (But note that the defense claim was not successful in any of these particular cases.)
As a lawyer, you’ll need to make arguments on behalf of your client – and also, anticipate the arguments likely to be made by the other side. To develop this skill, it’s important to become familiar with typical categories of argument.
End of Chapter Review
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Introduction
The first four chapters of this book have offered an overview of how criminal law works. They have examined a human practice in which written texts are used to express, guide, authorize, or constrain decisions to classify and condemn certain acts, and certain people, as criminal. Our coverage of the basic structure and operation of criminal law has not, so far, focused on any single type of criminal offense. This chapter and the next two do focus on specific categories of offenses. Before discussing property crimes and the reasons to study them, it may help to take note of the criminal offenses that were charged in the cases you’ve read so far:
• Commonwealth v. Mochan: misdemeanor injury to public morality (harassing telephone calls)
• Commonwealth v. Copenhaver: driving while intoxicated and drug offenses (after traffic stop for expired registration)
• Morissette v. United States: knowing conversion of government property (a kind of theft)
• State v. Alvarado: possessing contraband in prison
• Lambert v. California: failure to register as felon
• People v. Kellogg: public intoxication
• City of Chicago v. Morales: gang loitering
• Inmates of Attica v. Rockefeller: [no charges; this was a civil lawsuit seeking to compel prosecutors to charge prison officials with assault, homicide, and civil rights violations]
• State v. Cissell: failure to pay child support
• United States v. Armstrong: drug offenses
• In re Winship: juvenile equivalent of larceny (theft)
• Owens v. Maryland: driving while intoxicated
• Bordenkircher v. Hayes: check forgery
• Yates v. United States: concealing a tangible object related to government investigation
The cases listed above were selected to illustrate the process of criminalization, enforcement, and adjudication; they were not selected on the basis of the types of crimes that were charged. All the same, these cases have offered a useful sampling of activities that are frequently classified as criminal: the possession or distribution of drugs; taking property; risky activities (drunk driving); regulatory violations (failure to register); and, in just one of the above cases, physical violence. Most states organize their criminal codes into categories defined by the type of prohibited conduct: Offenses Against Property; Offenses Against the Person; Offenses Against Public Administration; Offenses Against Public Order; Offenses Against Public Health, Safety, and Morals; and so on. States do not always use the same labels or classify particular offenses under the same headings, but you will see some common patterns if you browse the tables of contents of a few state criminal codes, which is easy to do:
Most states post their codes online, so you can probably find yours easily even if it is not listed above. Browsing penal codes can help you gain a sense of the usual structure and content of codes, but it should also reinforce this point: you should not think of learning criminal law as simply a matter of learning the definitions of offenses. If someone wants to know the exact definition of burglary in Texas (to take one example), they can find it online relatively easily. As a lawyer, the value you bring to your clients will not come from your ability to recite the elements of any given statute, or even from your ability to describe typical patterns of burglary definitions—though it is indeed useful to be familiar with those patterns. Rather, your services as a lawyer will be valuable if you understand how the criminal system works and how to help your clients navigate through it. You will need to understand the key decisions to be made and the texts that will matter to those decisions, and you will need to be able to make persuasive arguments to the relevant decisionmakers. With that in mind, this chapter has two broad goals: it seeks to teach the basic components and usual definitions of property crimes, and it aims to use this category of offenses to expand and reinforce your broader understanding of how criminal law works.
Property crimes are, roughly, crimes that involve some sort of misappropriation or misuse of property. That is only a rough description, we should emphasize. Many offense definitions include both a misappropriation of property and some other core element, such as the infliction or threat of physical harm to a person. Robbery (usually defined as theft by use or threat of force) is a clear example, and robbery is often classified as a violent crime or a “crime against the person” rather than a property crime. Arson is also sometimes classified as a violent crime, or placed in a separate category of “crimes against the habitation.” For our purposes, though, “property crimes” is a useful label for an array of offenses that involve misappropriation or misuse of property. Robbery and arson are addressed in this chapter, rather than the next chapter on crimes against the person, because they both are based in part on concerns about property. But both robbery and arson could be – and often are – classified as “violent crimes” or crimes against the person. The next chapter explores in more detail the classification of crimes as violent.
Property crime is the focus here; what is property? That question is more difficult than it may first appear, and you’re likely to tackle it in a separate course focused on property law. For now, recognize that property includes not just land, money, and objects but also, sometimes, information or other intangibles. Happily, most of the cases we consider in this chapter concern relatively easily recognizable forms of property, such as a car, a purse, or money. Recognize also that ideas about property and ownership change over time. American law once treated certain persons – enslaved persons – as themselves a form of property, and criminal law was used to enforce the property rights of slaveholders. Today, to use someone else’s labor and then refuse to pay for it could itself be the crime of “wage theft.” It should also be noted that the very existence of the United States as an independent, sovereign nation is premised on the claim that European settlers eventually became the legitimate owners of the land they occupied, notwithstanding the fact that indigenous peoples had previously lived on and used that land. This chapter will not delve deeply into these important issues or radical critiques of property itself (such as Proudhon’s quip that “property is theft!”). Instead, for the most part this chapter will take for granted the determinations about what is property, and who is an owner, that have been made outside of criminal law. We will focus on the ways in which criminal law is used to enforce those determinations. But it is worth remembering that these determinations about property and owners are human judgments rather than natural truths. The idea that it is wrong to take property from an owner may seem natural and intuitive, but what constitutes property and who qualifies as an owner are political and legal questions.
Similarly, it is worth noting that there are deep moral and political questions about the distribution of property, and again criminal law operates mainly to enforce whatever answers to those questions have been reached in other arenas. Some fields of law or policy, such as tax law or social welfare spending programs, may openly embrace redistributive aims. The criminal law of property, in contrast, mostly aims to preserve existing distributions of property. Put differently, redistribution through self-help is disfavored by criminal law, as you’ll see in this chapter.
As we will see, the criminalization of property offenses may be motivated by any of several different goals. A legislature may wish to protect owners’ rights in possession and control of the things they own. But property crimes also often seem designed to protect somewhat more abstract interests in trust, security, or “civil order.” Again, the interests that criminal law has seemingly sought to protect have evolved over time. In cases in this chapter, you will find both appeals to the past and efforts to break from it. In particular, you’ll see the continuing influence of common law concepts even in a world of statutes, as courts often trace the development and evolution of property crimes in order to make sense of a modern-day statute.
Property crimes are a significant source of criminal convictions (about one-quarter of all felony convictions) and of prison sentences (about one-fifth of all prison sentences). In state prisons, where most incarcerated persons are held, property crimes are the second-most frequent source of a prison sentence, after offenses classified as “violent.” Drug crimes, discussed in more detail in Chapter Seven, are the third most frequent type of conviction among persons held in state prison. (In the federal system, property crimes are not quite as important as a source of incarceration; violent offenses, drug offenses, and “public order” offenses all generate more federal prison sentences.) For more granular details on property crimes as a source of imprisonment in comparison to other types of crime, you can consult the Prison Policy Initiative’s “Whole Pie” chart, referenced earlier in this book and available at https://www.prisonpolicy.org/reports/pie2020.html.
There’s one other reason that property crimes are important: for better or worse, they’re a particular favorite of the people who write multiple choice questions for the Multistate Bar Exam (MBE). The MBE often features several questions about larceny, embezzlement, burglary, and other property offenses, usually assuming common law definitions of those offenses rather than providing a specific statutory definition. You may wish to wait until you’re actively preparing for a bar exam to memorize the MBE’s definitions of property offenses. But learning the basic contours of various property offenses now, including traditional common law definitions of those offenses, will certainly make bar preparation easier when that time comes.
By the end of this chapter, you should be able to analyze and apply statutory or common law definitions of a number of property crimes: larceny, embezzlement, “theft” more generally, burglary, trespass, robbery, and arson. You should be familiar with interpretive questions that arise frequently in relation to these offenses. And, as always, you should see how criminalization, enforcement, and adjudication decisions interact with one another. Look for ways in which changes to the criminalization of property offenses have shaped the enforcement and adjudication of these offenses.
Common Law to Consolidation: Larceny and Beyond
California Penal Code § 211. Robbery
Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.
California Penal Code § 484. Theft defined
a) Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft. …
California Penal Code § 487. Grand theft defined
Grand theft is theft committed in any of the following cases:
a) When the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars (\$950)…
The PEOPLE
v.
Demetrius Lamont WILLIAMS
Supreme Court of California
305 P.3d 1241
Aug. 26, 2013
KENNARD, J.
… On July 4, 2009, defendant Demetrius Lamont Williams entered a Walmart department store in Palmdale. Using either a MasterCard or a Visa payment card, which was re-encoded with a third party’s credit card information, defendant bought a \$200 Walmart gift card from a recently hired cashier, who was filling in for a cashier on a break. Defendant then tried to buy three more gift cards from the same cashier. At that point, the regular cashier came back and, after learning of the previous transaction, told defendant of Walmart’s policy prohibiting the use of credit cards for purchases of gift cards. Defendant was permitted to keep the \$200 gift card he had initially bought.
Defendant then went to a different cash register and again presented a re-encoded payment card to buy another \$200 gift card. The transaction was observed by a Walmart security guard who, accompanied by another guard, asked defendant for the receipt and payment card used. Defendant complied. When told that the payment card’s last four digits did not match those on the receipt, defendant produced two other re-encoded payment cards, but their numbers did not match those on the receipt either.
Defendant began walking toward the exit, followed by the two security guards. When defendant was told to stop, he produced yet another re-encoded payment card, but this card’s last four digits also did not match those on the receipt. As defendant continued walking toward the exit, he pushed one of the guards, dropped some receipts, and started running away. After a brief struggle inside the store, the guards wrestled defendant to the ground and handcuffed him. Recovered from defendant’s possession were four payment cards issued by MasterCard and Visa. Also retrieved from defendant were several gift cards from Walmart and elsewhere.
Defendant was charged with four counts of second degree robbery (§ 211), one count of second degree burglary (§ 459), one count of fraudulent use of an access card (§ 484g), one count of grand theft (§ 487, subd. (a)), and three counts of forgery (§ 484i, subd. (b)), a total of 10 counts… Regarding the grand theft count, the court instructed the jury on grand theft by false pretenses. The jury found defendant guilty as charged, and the trial court sentenced him to a total prison term of 23 years eight months. The Court of Appeal reversed defendant’s forgery convictions for insufficient evidence and [stayed] imposition of the burglary sentence… [but affirmed] defendant’s robbery convictions.
As he did in the Court of Appeal, defendant here argues his robbery convictions should be reversed because robbery requires theft by larceny, whereas the theft he committed was by false pretenses. We agree.
II
Robbery is “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” The term “felonious taking” originated in the common law and was later adopted in California’s robbery statute. At issue here is the meaning of “felonious taking.” Can that element of robbery be satisfied only by the crime of theft by larceny, as defendant argues? Or can it also be committed through theft by false pretenses, as the Attorney General contends?
To help us ascertain the meaning that the Legislature intended when it used the words “felonious taking” in California’s robbery statute, we need to examine that statute’s common law roots.
A. Crime of Larceny
California statutorily defines the crime of theft by larceny as the felonious stealing, taking, carrying, leading, or driving away of the personal property of another. That statutory definition reflects its English common law roots.
Unlike statutory law, whose authority rests upon an express declaration by a legislative body, the common law “consists of those principles and forms which grow out of the customs and habits of a people,” enshrined in law by virtue of judicial decisions. Much of the law developed in English courts was later applied in England’s American colonies and then, after independence, in this nation’s states. As used in this opinion, the term “common law” denotes a “body of judge-made law … developed originally in England.” And, as used here, the term “common law crime” means a “crime that [was] punishable under the common law, rather than by force of statute.”
The common law defined larceny as the taking and carrying away of someone else’s personal property, by trespass, with the intent to permanently deprive the owner of possession. Larceny was considered to be an offense less serious than robbery because of robbery’s additional requirement of personal violence against, or intimidation of, the victim. Not that the distinction made any difference to the accused: Under the common law, robbery and larceny were felonies, and all felonies were punishable by death.
… By [the late 18th century], English society and its judiciary had become troubled by that excessively harsh punishment for theft crimes. This concern led the English courts to limit the scope of larceny. For instance, it was held not to be larceny—and not a crime at all—if someone in lawful possession of another’s property misappropriated it for personal use (the later offense of embezzlement), or if someone acquired title to another’s property by fraud (the later offense of false pretenses). These limitations to the law of larceny made sense in light of that crime’s original purpose of preventing breaches of the peace; because embezzlement and false pretenses lacked larceny’s requirement of a “trespass in the taking,” they were viewed as less likely to result in violence.
Although common law larceny was in some ways narrowed to limit punishment by death, the scope of larceny was in other ways broadened to provide greater protection of private property. For instance, in 1799 an English court decision introduced the concept of “larceny by trick.” Larceny by trick … involves taking possession of another’s property by fraud.
[Again,] larceny requires a trespassory taking, which is a taking without the property owner’s consent. Although a trespassory taking is not immediately evident when larceny occurs “by trick” because of the crime’s fraudulent nature, English courts held that a property owner who is fraudulently induced to transfer possession of the property to another does not do so with free and genuine consent, so “the one who thus fraudulently obtains possession commits a trespass….”
The reasoning supporting larceny by trick’s inclusion within the crime of larceny—that fraud vitiates the property owner’s consent to the taking—was not extended, however, to cases involving the fraudulent transfer of title. Under the common law, if title was transferred, there was no trespass and hence no larceny. The theory was that once title to property was voluntarily transferred by its owner to another, the recipient owned the property and therefore could not be said to be trespassing upon it. … These subtle limitations on the common law crime of larceny spurred the British Parliament in the 18th century to create the separate statutory offenses of theft by false pretenses and embezzlement….
B. Crimes of Theft by False Pretenses and Embezzlement
… Britain’s 18th century division of theft into the three separate crimes of larceny, false pretenses, and embezzlement made its way into the early criminal laws of the American states. That import has been widely criticized in this nation’s legal community because of the seemingly arbitrary distinctions between the three offenses and the burden these distinctions have posed for prosecutors….
For instance, it was difficult at times to determine whether a defendant had acquired title to the property, or merely possession, a distinction separating theft by false pretenses from larceny by trick. It was similarly difficult at times to determine whether a defendant, clearly guilty of some theft offense, had committed embezzlement or larceny, as an 1867 Massachusetts case illustrates. There, a defendant was first indicted for larceny and acquitted; later, on the same facts, he was indicted for embezzlement and convicted; and thereafter, on appeal, his conviction was set aside on the ground that his offense was larceny, not embezzlement. Com. v. O’Malley, 97 Mass. 584 (1867).
In the early 20th century, many state legislatures, recognizing the burdens imposed on prosecutors by the separation of the three crimes of larceny, false pretenses, and embezzlement, consolidated those offenses into a single crime, usually called “theft.” The California Legislature did so in 1927, by statutory amendment. In a 1954 decision, this court explained: “The purpose of the consolidation was to remove the technicalities that existed in the pleading and proof of these crimes at common law. Indictments and informations charging the crime of ‘theft’ can now simply allege an ‘unlawful taking.’ [Citations.] Juries need no longer be concerned with the technical differences between the several types of theft, and can return a general verdict of guilty if they find that an ‘unlawful taking’ has been proved [Citations.]. The elements of the several types of theft included within section 484 have not been changed, however, and a judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses.” People v. Ashley (1954).
As we pointed out in Ashley, the California Legislature’s consolidation of larceny, false pretenses, and embezzlement into the single crime of theft did not change the elements of those offenses….
C. Elements of Robbery, Larceny, and Theft by False Pretenses and Their Application Here
We now consider the issue here: whether robbery’s element of “felonious taking” can be satisfied through theft by false pretenses, the type of theft defendant committed.
Robbery is “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Reflected in that statutory definition are larceny’s elements of “the taking of another’s property, with the intent to steal and carry it away.” The taking required in larceny, as in robbery, must be “felonious.”
By adopting in the robbery statute the phrase “felonious taking” that was used in the common law with regard to both robbery and larceny, the California Legislature in all likelihood intended to attach to the statutory phrase the same meaning the phrase had under the common law.
…[A]ll larceny at common law was a felony, and thus the common law defined larceny as a “felonious taking.” Because California’s robbery statute uses the common law’s phrase “felonious taking,” and because at common law “felonious taking” was synonymous with larceny, we conclude that larceny is a necessary element of robbery….
Two differences in the crimes of larceny and theft by false pretenses tend to support our conclusion that only theft by larceny, not by false pretenses, can fulfill the “felonious taking” requirement of robbery.
First, larceny requires “asportation,” which is a carrying away of stolen property. This element of larceny, although satisfied by only the slightest movement, continues until the perpetrator reaches a place of temporary safety. Asportation is what makes larceny a continuing offense. Because larceny is a continuing offense, a defendant who uses force or fear in an attempt to escape with property taken by larceny has committed robbery. Similarly, the Attorney General asserts that defendant committed robbery because he shoved the Walmart security guards during his attempt to flee the store after acquiring the store gift cards through theft by false pretenses.
But theft by false pretenses, unlike larceny, has no requirement of asportation. The offense requires only that “(1) the defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation.” People v. Wooten (1996). The crime of theft by false pretenses ends at the moment title to the property is acquired, and thus cannot become robbery by the defendant’s later use of force or fear. Here, when defendant shoved the store security guards, he was no longer engaged in the commission of theft because he had already acquired title to the Walmart gift cards; therefore, defendant did not commit robbery.
… We now consider another significant difference between larceny and theft by false pretenses. …[L]arceny requires a “trespassory taking,” which is a taking without the property owner’s consent. This element of larceny, like all its other elements, is incorporated into California’s robbery statute. By contrast, theft by false pretenses involves the consensual transfer of possession as well as title of property; therefore, it cannot be committed by trespass. This is illustrated by the facts in a recent Court of Appeal decision, People v. Beaver (2010). There, the defendant staged an accident at his place of employment, a ski resort, to obtain medical expenses for a preexisting [knee injury]. The defendant was convicted of grand theft. The Court of Appeal reversed the conviction, holding that the jury was instructed on the incorrect type of theft—theft by larceny—and instead should have been instructed on theft by false pretenses. Beaver said: “The present matter did not involve a taking of property from another without his consent. [The ski resort] willingly paid for defendant’s medical treatment on the false representation that [it] had caused defendant’s injuries. This was theft by false pretenses, not larceny.” The essence of Beaver’s holding is this: Because the ski resort consented to paying for the defendant’s medical treatment, the defendant did not commit a trespassory taking, and hence did not commit larceny.
Here too defendant did not commit larceny. Walmart, through its store employees, consented to transferring title to the gift cards to defendant. Defendant acquired ownership of the gift cards through his false representation, on which Walmart relied, that he was using valid payment cards to purchase the gift cards. Only after discovering the fraud did the store seek to reclaim possession. Because a “felonious taking,” as required [for robbery] must be without the consent of the property owner, or “against his will,” and Walmart consented to the sale of the gift cards, defendant did not commit a trespassory (nonconsensual) taking, and hence did not commit robbery….
The dissent proposes a theory, not discussed in the parties’ briefs, to bring defendant within the robbery statute…. The gist of the dissent’s reasoning is this: Section 490a [of the California Penal Code] says any law or statute that refers to or mentions larceny or stealing must be construed as meaning “theft”; although the robbery statute does not expressly mention larceny or stealing, it refers to them indirectly through the words “felonious taking,” which should be interpreted under § 490a as meaning “theft,” a crime that includes theft by false pretenses. Therefore, the dissent concludes, the “felonious taking” element in the robbery statute encompasses defendant’s conduct in this case.
The dissent’s theory would require us to conclude that, by enacting § 490a, the Legislature intended to alter two of the substantive elements of robbery: asportation and a trespassory taking. But the 1927 legislation enacting § 490a and the theft consolidation statute (§ 484) left unchanged the elements of theft. We are not persuaded that the Legislature intended to alter the elements of robbery, to which § 490a makes no reference whatever, while also intending to leave intact the elements of theft, to which it explicitly refers. As this court said more than 80 years ago, “the essence of § 490a is simply to effect a change in nomenclature without disturbing the substance of any law.People v. Myers (1929).
III
In resolving many complex legal issues, as Justice Oliver Wendell Holmes, Jr., observed, “a page of history is worth a volume of logic.” To determine the meaning of the words “felonious taking” in our statutory definition of robbery, we have delved into the sources of this statutory definition and, in turn, into the history of the common law crime of larceny and the statutory crime of theft by false pretenses. This review has led us to conclude that the words “felonious taking” in the robbery definition were intended to refer only to theft committed by larceny and not to theft by false pretenses.
The logic and fairness of this conclusion may be open to question because a thief who uses force to resist capture may be equally culpable whether the theft was committed by larceny (for example, ordinary shoplifting) or by false pretenses (as occurred here). Nevertheless, our task is simply to interpret and apply the laws as the Legislature has enacted them, not to revise or reform them to better reflect contemporary standards.
We reverse the Court of Appeal’s judgment upholding defendant’s four robbery convictions. Because other aspects of the Court of Appeal’s decision may be affected by our reversal of defendant’s robbery convictions, the matter is remanded to that court for further proceedings consistent with the views expressed in this opinion.
Dissenting opinion by BAXTER, J.
…[The majority’s] reasoning and result contradict[] the legislative intent behind California’s robbery and unified theft statutes. is in conflict with long-standing California jurisprudence, including several decisions of this court that have reached the opposite conclusion. And it is patently at odds with the important public policies served by the robbery statute. “Robbery violates the social interest in the safety and security of the person [robbed] as well as the social interest in the protection of property rights.” Both interests are implicated when a thief enters a business establishment, steals property, and then uses force or fear against a robbery victim or victims while fleeing, regardless of the particular manner of theft employed. I respectfully dissent.
… At the same time as the 1927 consolidation of all common law forms of theft into a unified “theft” crime (§ 484), our Legislature also enacted this provision: “Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall … be read and interpreted as if the word ‘theft’ were substituted therefor.” (§ 490a).
Section 490a indicates the Legislature’s intent that the different types of common law theft consolidated in § 484 are to be treated as the single crime of “theft” in California…
True, unlike the burglary statute, the robbery statute does not utilize either the term “larceny,” or the term “stealing.” Rather, it uses the broader phrase “felonious taking of personal property” to denote the taking element of robbery. Section 490a, however, states that any law or statute that “refers to or mentions larceny … or stealing ” (italics added) should be read and interpreted as if the word “theft” were substituted. Thus, the statute need not specifically mention larceny or stealing; to simply refer to larceny or stealing is enough. A felonious taking is a taking done with the intent to steal another’s property…
In short, the robbery statute is a statute that “refers to … larceny or stealing.” (§ 490a, italics added.) That is because the “felonious taking” element of robbery is a taking done with the intent to steal another’s property “against his will.” Because § 490a directs that any law that “refers to … larceny or stealing” is to be read and interpreted as if the term “theft” was inserted therein, and because the robbery statute incorporates such a reference, albeit indirectly, the “felonious taking” element of robbery must be interpreted as synonymous with “theft.” …Here, defendant’s conduct in stealing gift cards from Walmart, although accomplished by false pretenses, plainly satisfied the felonious taking element of robbery.
The majority’s analysis of the 18th century English common law roots of the various common law forms of theft … in support of its conclusion that the common law crime of theft by false pretenses is not a continuing form of theft, and cannot be transformed into robbery where force or fear is later used, overlooks the important remedial legislation that consolidated the common law forms of theft into the unified crime of “theft” in California….
I would affirm the judgment of the Court of Appeal.
Notes and questions on People v. Williams
1. Williams offers both an overview of common law theft offenses and an alternative statutory approach that is typical of many contemporary criminal codes. Note the multiple different offenses mentioned in the majority’s discussion of the common law: larceny, robbery, theft by false pretenses, embezzlement, and larceny by trick. It may be helpful to identify the different elements of these offenses as they were typically defined at common law. To do so, it is useful to keep in mind a distinction between possession of property (having immediate control over it) and holding legal title to it (being recognized as the owner by law). Possession and ownership can coincide, but they can also diverge. If you’ve allowed me to borrow your car, I’m in temporary possession of it but I’m not the owner. The chart below captures the common law definitions of property offenses as identified by the California court in Williams. Each of these offenses will be discussed in more detail later in this chapter, but comparing the definitions can help you get used to thinking of crimes in terms of their elements.
Larceny
• Taking (by trespass)
• Carrying away
• The property
• Of another
• With intent to permanently deprive the owner of possession
Robbery
• Larceny
• By force
False pretenses
• Acquiring title
• To the property
• Of another
• By fraud
Embezzlement
• While in possession
• Of the property
• of another,
• Converting that property to personal use
• By fraud
Larceny by trick
• Taking (by fraud, as a form of trespass)
• And carrying away
• The property
• Of another
• With intent to permanently deprive the owner of possession
2. According to the Williams court, larceny and related offenses emerged not primarily out of a concern to protect property rights, but rather with the “original purpose of preventing breaches of the peace.” It was taking property in a way likely to produce violence or conflict that was criminalized; appropriation of property by fraud or secrecy was not initially seen to warrant criminal intervention. Today, criminal law is concerned with both force and fraud, and with the protection of property rights even when neither force nor fraud is deployed. Think about how and why societies have made different criminalization choices over the centuries. Both in the ancient past and here in the twenty-first century, people have disagreed about whether violence is categorically worse than deception. For example, after Bernie Madoff was convicted of fraud offenses involving over 64 billion dollars, one of the investors defrauded by Madoff invoked the ancient Italian poet Dante Aligheri, whose Divine Comedy famously imagines the descending circles of hell. According to Dante, those who commit fraud are subject to even more severe divine punishments than those who use violence. Though violence is certainly terrible, fraud was still more displeasing to God, since “the vice of fraud is man’s alone.” See Dante, The Divine Comedy; see also Burt Ross, What I Told Madoff Today, Daily Beast (June 29, 2009).
3. Common law larceny required both i) a taking (sometimes called “caption”) by trespass, otherwise known as a taking without consent, and ii) “asportation,” or the carrying away of the property. In most states, these somewhat archaic concepts have been replaced with the unified concept of “possession or control.” For more details, see State v. Donaldson, the next case in this chapter.
4. At the beginning of Part III of its opinion, the Williamsmajority quotes Oliver Wendell Holmes, Jr.: “[A] page of history is worth a volume of logic.” And the court then concedes that “the logic and fairness of [our] conclusion may be open to question….” Is the court sacrificing fairness unnecessarily in order to preserve dated and obscure legal concepts? Or is the reversal of Williams’s robbery convictions a fair outcome after all? Is the court’s decision dictated by earlier criminalization decisions, and if so, which ones—common law decisions or legislative decisions? As you read the cases in this chapter, consider whether logic and history are in tension in theft law, and if so, which has prevailed.
Check Your Understanding (5-1)
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For the Williams majority (but not the dissent), common law categories and concepts continue to be relevant even for a modern theft statute. For a different assessment of the relevance of the common law, consider State v. Donaldson, below. It may be helpful first to consider the text of the Iowa statute applied in Donaldson, along with the text of the Model Penal Code provision on which the Iowa statute is based.
Iowa Code § 714.1. Theft defined
A person commits theft when the person does any of the following:
1. Takes possession or control of the property of another, or property in the possession of another, with the intent to deprive the other thereof.
Model Penal Code § 223.2 . Theft by unlawful taking or disposition
(1) Movable Property. A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof.
(2) Immovable Property. A person is guilty of theft if he unlawfully transfers immovable property of another or any interest therein with purpose to benefit himself or another not entitled thereto.
STATE of Iowa, Appellee
v.
Dean Lester DONALDSON, Appellant
Supreme Court of Iowa
663 N.W.2d 882
June 11, 2003
STREIT, Justice.
…At 1:50 a.m., a Sioux City police officer saw a van parked in front of Combined Pool & Spa with its sliding door partially open. The officer illuminated the van. As he walked towards the van, the brake lights flashed. Two men hotfooted across Highway 75. The officer gave chase, but was unable to find them. Upon returning to his squad car, the officer saw the steering column in the van had been forcibly removed and there were wires protruding from it. The radio was on and the “check engine” sign was lit on the console. Later, one of the men was found and identified as Dean Lester Donaldson.
Donaldson was charged with one count of second-degree theft as an habitual offender. Prior to the trial, Donaldson filed a motion to adjudicate law points arguing the facts did not support a charge of theft. Donaldson asserted because he never possessed the van, he could not be convicted of theft. Donaldson argued, at most, the facts supported a charge of attempted theft. However, Iowa does not recognize a separate crime of attempted theft. The State asserted Donaldson took possession of the van when he hot-wired it. The district court agreed with the State and denied Donaldson’s motion… After a trial, Donaldson was convicted of second-degree theft. Prior to sentencing Donaldson renewed his motion raising the same arguments in the original motion to adjudicate law points. The district court overruled the motion and sentenced Donaldson. Donaldson appeals.
…This appeal is limited to one main issue. We must determine whether the district court properly denied Donaldson’s motion for judgment of acquittal challenging the sufficiency of the facts to support a conviction of second-degree theft. The question is whether Donaldson possessed or controlled another’s van when he broke into it, dismantled the steering column, and manipulated the ignition switch turning the radio on, lighting the “check engine” sign, and causing the brake lights to flash. Our review is for correction of errors of law.
…The State charged Donaldson with second-degree theft pursuant to Iowa Code § 714.1(1) [and with other offenses]. This statute provides “a person commits theft when” he or she “[t]akes possession or control of the property of another, or property in the possession of another, with the intent to deprive the other thereof.” At the end of the State’s case, Donaldson moved for a judgment of acquittal. He argued the State failed to prove the elements of theft…. Counsel argued the “starter must be engaged for there to be actual control over that vehicle.” The court disagreed and overruled Donaldson’s motion.
The Iowa theft statute is modeled after the Model Penal Code, with slight variation. Model Penal Code § 223.2. Our terms “possession or control” of another’s property replace the common law larceny requirements of “caption” and “asportation.” “Caption,” or taking, occurred when the actor secured dominion over the property of another. The element of “asportation,” or carrying away, was satisfied with even the most slight change in position of the stolen object. At common law, to prove a theft, the State had to show a defendant took the property of another, i.e., secured dominion over it, and carried the property away.
The asportation requirement was important at common law because if a defendant’s actions fell short of causing the object of the theft to move, the defendant was guilty of attempt only. Because a completed larceny was generally a felony whereas attempt was a misdemeanor, significant differences in “procedure and punishment turned on the criminologically insignificant fact of slight movement of the object of theft.” In modern criminal law, however, the penal consequences between attempt and a completed theft are so minimal that it has become less important to draw a bright line between the two actions. As such, the element of asportation is no longer necessary.
Iowa, like many other states following the Model Penal Code, has abandoned the common law asportation requirement. The key to our statute is the words “possession or control.” In determining the meaning of “possession” and “control,” we look to the Model Penal Code for guidance as our statute is modeled after it. The Model Penal Code contemplates “control” of the object to begin when the defendant “use[s] it in a manner beyond his authority.” The method of exerting control over the object of the theft is important only insofar as it “sheds light on the authority of the actor to behave as he did.” Our statute replaces the common law element of “taking” with “possession.” The Model Penal Code provides a person commits theft if he or she “unlawfully takes, or exercises unlawful control over” the property of another. A taking in this sense concerns whether the offender exerted control over the object “adverse to or usurpatory of the owner’s dominion.” That is, one possesses an object if he or she secures dominion over it. To summarize the above concepts, “possession or control” begins and a theft is completed when the actor secures dominion over the object or uses it in a manner beyond his authority.
Donaldson argues his conduct, at most, is sufficient to prove attempted theft, not a completed theft. We acknowledge the issue before us is complicated because “all theft partakes of the character of attempt.” The line between attempt and a completed theft is a thin one. “The thief proposes to make the property his own more or less permanently; but he is nonetheless a thief if, shortly after he exerts his dominion over the property of another, he is prevented from making off with it.”…
The question before us concerns whether the defendant possessed or controlled the object of the theft. The critical issue, as the statute dictates, is not whether the defendant used or operated the object of the theft. As to Donaldson’s conduct, we must determine whether he exercised wrongful dominion or unauthorized control of the van. The judge instructed the jury on “possession” using the Iowa Criminal Jury Instructions.[1] Bearing in mind the definitions of “control” and “possession” as contemplated by the Model Penal Code, we turn to the facts.
The undisputed facts of the case [establish that] Donaldson entered a van owned by Combined Pool & Spa…. As the officer approached, Donaldson got out of the driver’s side and ran away. The officer called after Donaldson, identified himself as a police officer, and ordered him to stop. Donaldson kept running. When the officer checked the van, he saw the steering column had been forcibly dismantled; there were wires hanging from the column. The ignition switch had been removed. The radio was operating. The “check engine” sign on the dashboard was lit. At trial, one of the officers testified Donaldson had engaged all of the electric systems. After turning on the electric accessory systems in the car, according to the officer, all Donaldson had left to do was engage the starter.
There is no evidence in the record to suggest Donaldson’s tearing apart the steering column was intended for any purpose other than to deprive the owner of her possession of the van. Donaldson argues he did not possess or control the van because he did not have the “ability to readily move or remove” it. This, however, is not the test for possession or control. Because we have abandoned the common law asportation requirement, movement or motion of the car is not essential to finding a defendant had possession or control of the car. Our theft statute does not state possession or control is tantamount to “operation” of the object of the theft. To interpret our statute in this manner is to restrict the definition of theft more narrowly than the legislature intended. Given a strict interpretation of the statute, the State only had to show Donaldson had control of the van, i.e., he had dominion over it in a manner inconsistent with his authority. We are unwilling to imply an “operation” requirement for certain kinds of property that are normally operated by its possessor.
The mere fact that Donaldson was interrupted by the police officer before he engaged the starter motor does not remove this case from the realm of a completed theft. It is not necessary that the engine was running and the van could have been moved. That is, technical operation of the van is not necessary to find Donaldson exercised wrongful dominion or unauthorized control over the van. … Certainly, Donaldson’s acts were sufficient to set into motion the steps necessary to power the van. It was not necessary that the engine was actually running. Rather, at the moment Donaldson began to manipulate the electrical wires for the purpose of starting the engine, he exerted complete control over the vehicle.
In sum, the facts before us show Donaldson was using the van owned by another person. He had the power and intention at the given time to exercise unfettered dominion over the van. Donaldson was in a position to exclude all others from the van, for example, by locking it. No one else could have hot-wired the van or started it with a key while Donaldson had control over it. Moreover, he used the van without the owner’s consent and in a manner beyond his authority. Donaldson entered the company’s van around 1:30 in the morning. He tore apart the steering column. The ignition switch had been removed; wires protruded from the ignition. The brake lights flashed. The radio worked. The “check engine” sign was lit. When the officer approached the van, Donaldson got out of the driver’s side and ran away. All of these facts together are sufficient to show Donaldson controlled the van within the meaning of § 714.1(1). As such, the trial court properly denied Donaldson’s motion for judgment of acquittal. We affirm.
[The court noted in a footnote that in future theft prosecutions under 714.1, “the district court should sculpt its jury instructions using the concepts articulated in the Model Penal Code. The jury should be instructed a theft is completed when the defendant secures dominion over the object of the theft or uses it in a manner beyond his authority.”]
Notes and questions on State v. Donaldson
1. In Chapter Seven, which covers gun and drug offenses, we will study the concept of “possession” in more detail. This case gives you a preview. The Donaldson court says that “possession” for purposes of property offenses should be defined differently than “possession” as that term is used in contraband offenses. What are the key differences between the different definitions of possession? Are the differences significant enough that Donaldson’s conviction should have been reversed due to inadequate jury instructions? If not, why does the court advise the use of different instructions in future theft prosecutions?
2. In the second half of the twentieth century, inspired in part by the Model Penal Code, many U.S. jurisdictions consolidated the various narrowly defined property offenses that had existed at common law and created one new, broader offense called “theft.” But in some states, like California, the old common law categories have continued to influence judicial interpretations of the new consolidated crime, as you saw in People v. Williams, above. In other states, including Iowa as illustrated by Donaldson, courts have viewed the consolidation of theft as a more substantial redefinition of property crimes. Had Dean Lester Donaldson “hot-wired” this van in California rather than Iowa, would he have been guilty of theft under Cal. Penal Code § 484?
3. A related question: does the Model Penal Code approach change the scope of property offenses? That is, is the same range of conduct treated as criminal under the common law definitions and the MPC, or does the MPC broaden (or narrow) the scope of liability for property offenses?
4. To help you assess the previous question, consider Lee v. State, 474 A.2d 537 (Ct. Sp. App. Md. 1984). Lee was a shoplifting case: the defendant put a bottle of liquor into his trousers in a store, was approached by an employee, and then put the bottle back on the shelf and fled the store. Was this conduct “theft”? The Lee court, like the courts in Williams and Donaldson, discussed in detail the history of common law property offenses, and the eventual consolidation of these offenses into one crime of theft. The court argued that consolidation created broader criminal liability for shoplifting than would have existed under common law.
In Maryland… [s]everal separate offenses, each involving some sort of taking and carrying away of property with an intent to deprive the owner, were consolidated under Article § 27… The legislature consolidated these offenses in an effort to eliminate the “technical and absurd distinctions that have plagued the larceny related offenses and produced a plethora of special provisions in the criminal law.” …The evolution of theft law is particularly relevant to thefts occurring in modern self-service stores where customers are impliedly invited to examine, try on, and carry about the merchandise on display. In a self-service store, the owner has in a sense, consented to the customer’s possession of the goods for a limited purpose. Under common law principles of theft, a person could not have been convicted if apprehended while still in the store because the perpetrator would have rightful possession (albeit temporarily) and thus could not perform the element of trespassory taking until he left the store without paying (at which point it might be too late). Under the present law, the fact that the owner temporarily consents to possession does not preclude a conviction for larceny if the customer exercises dominion and control over the property by using or concealing it in an unauthorized manner. Such conduct would satisfy the element of trespassory taking as it could provide the basis for the inference of the intent to deprive the owner of the property.
Lee, 474 A.2d at 540-541.
5. Both the Williams and Donaldson courts observe that one explicit aim of consolidation was easing the path of enforcement and making convictions easier to obtain. If indeed the consolidation of theft offenses resulted in an expansion of the scope of criminal law, then consolidation has not simply eased the burden on enforcement officials: it has increased their power and discretion. With that in mind, note that arrests, convictions, and sentences for property offenses show similar patterns of racial disparity as those identified for violent crimes and drug offenses. Racial disparities in the enforcement of property offenses have not (so far) received nearly as much scholarly or public attention as racial disparities in the enforcement of drug offenses, but there is evidence that enforcement officials do target persons of color for theft prosecutions more often than white persons who engage in similar conduct. For example, one study found that while persons who reported (anonymously) that they had engaged in shoplifting were overwhelmingly young and white, the individuals who were actually prosecuted for shoplifting were mostly “very old or very young Hispanic or black men.” Rachel Shteir, The Steal: A Cultural History of Shoplifting 88-89 (2011). Some commentators describe the increased surveillance and detention of minority shoppers as the de facto criminalization of “shopping while black.” Id.
6. The Donaldson court observes, “‘All theft partakes of the character of attempt.’ The line between attempt and a completed theft is a thin one.” This observation raises difficult questions about the timing and completion of crimes. We will examine these questions in much greater detail in Chapter Eight, which addresses inchoate crimes including attempt. For now, notice that neither common law definitions of property crimes nor modern statutory definitions require the defendant to keep property permanently in order to be guilty of the offense. A defendant completed common law larceny by “taking” and “carrying away” the property (with the right mental state), but carrying away (also called asportation) could be achieved simply by a slight change in the position of the property, as the Donaldson court notes. For the Iowa statute applied in Donaldson, asportation is not necessary, and the crime of theft is complete as soon as the defendant “takes possession or control” of the property (with the right mental state).
7. As the previous note explains, most definitions of property offenses do not require the defendant to keep the property permanently. However, many definitions do require an intention to keep the property permanently. See, for example, the definition of larceny in People v. Williams earlier in this chapter: “The common law defined larceny as the taking and carrying away of someone else’s personal property, by trespass, with the intent to permanently deprive the owner of possession” (emphasis added). Many courts characterize this intent requirement as a “specific intent” requirement.
8. In People v. Perry, 864 N.E.2d 196 (Ill. 2007), a defendant was charged with theft by deception after he occupied a hotel room for over three months but did not pay the bill. Under the Illinois statute, “A person commits theft when he knowingly … obtains by deception control over property of the owner … and intends to deprive the owner permanently of the use or benefit of the property.” Is occupancy of a hotel room “property”? And did a defendant who did not intend to stay in the room forever act with the requisite intent to permanently deprive the owner? The Illinois Supreme Court upheld the defendant’s conviction, finding that “[t]he property at issue here is the use of a hotel room. … One night in one room is a thing of value. When this thing of value is taken by deception, the owner has permanently lost the benefit of one night’s income.” Id. at 211.
9. Under the reasoning of Perry in the previous note, could non-payment of rent be a criminal offense? In fact, in almost every jurisdiction, rent disputes (including non-payment) are classified as civil matters. In Arkansas, however, a landlord can file a notice to vacate if a tenant is late with a rent payment, and if the tenant does not vacate within ten days, a warrant is issued for arrest. This “criminal evictions” law has drawn criticism from civil rights advocates for years, in part because the tenants prosecuted are disproportionately poor Black women. See Human Rights Watch, Pay the Rent or Face Arrest: Abusive Impacts of Arkansas’s Draconian Evictions Law (2013). As of 2022, a challenge to the Arkansas law is pending in federal court.
10. Arkansas’s criminal evictions statute is one of a kind. But the imposition of criminal liability for a failure to pay fees or other assessments is quite common. Commentators have used the term “the criminalization of poverty” to describe the heavy fees often assessed of criminal defendants and the additional sanctions imposed when defendants do not pay. The same phrase is also sometimes used to critique cash bail systems, which often require defendants without money to choose between lengthy pretrial detention or a quick guilty plea. See also Kaaryn Gustafson, The Criminalization of Poverty, 99 J. Crim. L. & Criminology 643 (2009) (discussing “the social construction of welfare fraud” and ways in which the welfare system and the criminal legal system have become increasingly intertwined).
The relevant statute for the next case is included within the text of the court’s opinion.
STATE of Florida, Appellant
v.
David Paul SIEGEL, Appellee
District Court of Appeal of Florida, Fifth District
778 So.2d 426
Feb. 2, 2001
THOMPSON, C.J.
…[David Paul] Siegel was charged by Information with grand theft. This charge followed Siegel’s expulsion from the University of Central Florida (UCF) for submitting fraudulent financial vouchers as a member of student government. The Information charged that Siegel:
[D]id … knowingly obtain or use, or endeavor to obtain or use a computer and computer equipment, of a value of THREE HUNDRED DOLLARS (\$300.00) or more, the property of another, to-wit: UNIVERSITY OF CENTRAL FLORIDA … as owner or custodian thereof, with the intent to temporarily or permanently deprive said owner or custodian of a right to the property or a benefit therefrom, or to appropriate the property to the defendant’s own use or to the use of a person not entitled thereto.
Both sides agree that Siegel was allowed to use, as part of his responsibilities as a member of the UCF student government, an IBM Thinkpad 755 CDV (laptop computer) owned by UCF. At some point, UCF officials demanded that Siegel return the laptop computer pursuant to UCF Student Government Laptop Policy. … Siegel refused to return the computer and, among other things, this criminal case resulted from that refus[al].
[Under Florida law,] a defendant may move for dismissal [by alleging] that “[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” Under this rule it is the defendant’s burden to specifically allege and swear to the undisputed facts in a motion to dismiss and to demonstrate that no prima facie case exists upon the facts set forth in detail in the motion. The purpose of this procedure is to avoid a trial when there are no material facts genuinely in issue.
The trial court dismissed this case, according to the record, because when Siegel first received the laptop computer, he did not have the criminal intent to deprive UCF of the computer. The theft statute Siegel is charged under provides in part:
A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit from the property.
§ 812.014(1)(a). In defining “obtains or uses,” the theft chapter provides in pertinent part:
“Obtains or uses” means any manner of:
…[c]onduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception….
§ 812.012(2)(d) 1., Fla.Stat. (emphasis added). In certain types of theft cases, like larceny or false pretenses, criminal intent must be formed at the time of the original taking… Under [this statute], however, theft is more than just larceny or theft by false pretenses. Theft also includes the common-law crime of embezzlement.
[In a footnote, the court explained:
Embezzlement “may be defined as: (1) the fraudulent (2) conversion of (3) the property (4) of another (5) by one who is already in lawful possession of it.” LaFave & Scott, Criminal Law at § 8.6. Under the state’s theory of the case, Siegel lawfully possessed UCF’s laptop computer, but refused to return it when the owner of the computer requested that he do so. This conduct arguably worked as an attempt to fraudulently convert the computer to Siegel’s possession.]
Unlike the crimes of larceny and false pretenses, embezzlement does not require that the defendant have criminal intent when he obtains the property in question. The alleged facts, if proven, fit the crime formerly known as embezzlement and now known as theft under the omnibus theft statute.
Notes and questions on State v. Siegel
1. This case has a somewhat different procedural history than many of the appellate opinions included in this book, because it does not involve an appeal after a conviction. In this case, the trial court dismissed the charges against Siegel before any trial took place, and the prosecution then appealed that dismissal. Notice Siegel was charged with grand theft by an “Information,” which is quoted in the court’s opinion. Unlike an indictment, an information does not require the prosecutor to submit the charges to a grand jury for approval. But there may exist other limits on the prosecutor’s discretion. Here, Siegel argued that the facts as alleged in the Information did not constitute the offense of grand theft.
2. Siegel was charged with grand theft, not a crime called embezzlement. Be sure you understand how the definition of embezzlement becomes important in this case. As you’ve seen earlier in this chapter, many states interpret their general “theft” statutes with reference to common law definitions of property crimes. The theft statute used to charge Siegel includes an element that the defendant “obtains or uses” the property of another. And a portion of the Florida statute provides that “obtains or uses” includes conduct previously known as embezzlement.
3. Look carefully at the elements of embezzlement as described by the Florida court. To commit this crime, the defendant must already be in “lawful possession” of the property in question. For example, an employee who is entrusted with company funds may be in lawful possession of that money. But if he takes the money for personal use, he may be guilty of embezzlement.
4. In other words, embezzlement does not require that the defendant have any wrongful intention at the time that he or she first takes possession of the property. That becomes important in this case. Siegel argued that he did not commit theft because he had no criminal intent when he first took possession of the laptop. For many theft crimes, this lack of criminal intent would be a plausible defense, thanks to a principle sometimes referred to as “concurrence of the elements.” This principle requires that the prosecution must establish all necessary elements of the offense and show that they occurred simultaneously: the defendant must have held the requisite mental state at the time that the conduct elements took place. If Siegel “obtained” the laptop only at the moment that he first took possession of it, then he did not have the right mens rea at the time of the actus reus. But if Siegel’s ongoing possession was an ongoing act of “obtaining or using” the property, then it does not matter if Siegel formed the intent to keep the laptop for his own personal use only later.
10 U.S.C. § 921. Uniform Code of Military Justice, Article 121. Larceny and wrongful appropriation
(a) Any person subject to this chapter who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind–
(1) with intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty of larceny; or
(2) with intent temporarily to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, is guilty of wrongful appropriation.
(b) Any person found guilty of larceny or wrongful appropriation shall be punished as a court-martial may direct.
UNITED STATES
v.
Andrew S. COFFMAN, Lance Corporal (E–3), U.S. Marine Corps
U.S. Navy–Marine Corps Court of Criminal Appeals
62 M.J. 676
Decided 22 Feb. 2006
DORMAN, Chief Judge:
A military judge sitting as a special court-martial convicted the appellant, pursuant to his pleas, of a false official statement and larceny….
The appellant pleaded guilty to the theft of several items of special operations equipment, such as a force vest, canteen covers, and a duty belt (hereinafter referred to as “gear”). The total value of the stolen gear exceeded \$500.00. The gear belonged to another Marine…
The appellant was serving in Al Hillah, Iraq, when he took the gear he was charged with stealing. The gear was located in an open box, and, at the time he took it, the appellant did not know who owned the gear. The appellant found the box in a room that he and others had been told to clean out in preparation for another platoon’s arrival. Unit personnel had previously used this room to store their packs. The room contained several boxes that they had been instructed to dispose of, including the box containing the gear. As they cleaned out the room, they discovered items that were never picked up by their owners and appeared to have been left behind for trash. The appellant took the box from a room where unit personnel had been storing their packs and he brought it to his rack. There was no name on the gear, but the appellant knew it did not belong to him. The appellant was the first one to find the box containing the gear. The appellant also knew that the items should not have been discarded. He went up and down the passageway asking whether anyone had left a box of gear in the room. He asked almost the entire platoon. When he could not determine who owned the gear, he decided to use it himself.
The appellant used the gear for about a month while going on patrols. The use continued until his section leader confronted him about whether the gear belonged to him. Initially, the appellant told the section leader that he had purchased the gear. This false statement was prosecuted under Article 107, UCMJ. The appellant did not learn who owned the gear until after he had surrendered it. The owner was a member of the appellant’s battalion, and the appellant was acquainted with him. The appellant informed the military judge that if he had not been confronted by the command, he would have continued to use the gear.
As the providence inquiry continued, the appellant then answered “yes” or “no” to a series of questions dealing with the legality of his actions. He admitted that he knew it was wrongful to take the gear, that the gear was not abandoned, that he intended to permanently deprive the owner of the gear, that he had no legal justification or excuse for his actions, and that he took and retained the gear with a criminal state of mind.
… The appellant now argues that his plea is improvident because the military judge failed to adequately inquire into the “apparent defense of ignorance or mistake of fact as to whether the gear … was abandoned, lost, or mislaid.”…
… Before accepting a guilty plea, the military judge must explain the elements of the offense and ensure that a factual basis for the plea exists. Mere conclusions of law recited by the accused are insufficient to provide a factual basis for a guilty plea. The accused “must be convinced of, and able to describe all the facts necessary to establish guilt.” Acceptance of a guilty plea requires the accused to substantiate the facts that objectively support his plea.
…The standard of review to determine whether a plea is provident is whether the record reveals a substantial basis in law and fact for questioning the plea. Such rejection must overcome the generally applied waiver of the factual issue of guilt inherent in voluntary pleas of guilty, and the only exception to the general rule of waiver arises when an error materially prejudicial to the substantial rights of the appellant occurs. … An abuse of discretion standard is applied in reviewing the question of whether a military judge erred in accepting a guilty plea. In considering the adequacy of guilty pleas, we consider the entire record…
In our review of the record, we determined that the military judge accurately listed the elements of larceny and defined the terms relevant to those elements. We also determined that the appellant indicated an understanding of the elements of the offense and that he acknowledged that they correctly described what he did. Thereafter, the military judge conducted an inquiry with the appellant to determine whether a factual basis for the plea existed. The inquiry went well until such time as the appellant essentially informed the military judge that the gear he took had been left in the room as trash. After that point, most of the questions asked by the military judge called for a “yes” or “no” answer, and many called for legal conclusions.
Abandoned property cannot be the subject of a larceny. The appellant’s statement to the military judge that the gear had been left there as trash raised the issue of mistake of fact. Furthermore, since larceny is a specific intent offense, if the appellant had an honest belief that the property was abandoned, he has a complete defense.
For a complex offense such as conspiracy, robbery, or murder, a failure to discuss and explain the elements of the offense during the providence inquiry has been held to be fatal to the guilty plea on appeal. Similarly, a military judge should explain the elements of defenses, such as mistake of fact and abandonment, if raised by the appellant during the providence inquiry. Failure to do so can leave unresolved substantial inconsistencies in the pleas and/or raise questions concerning whether the appellant was armed with sufficient information to knowingly plead guilty. Where the elements of an offense, or defenses, are commonly known by most servicemembers, however, it is not necessary for the military judge to explain them, if it is otherwise apparent on the record that the accused understood the elements or the defense.
In the case before us, the military judge failed to explain the mistake of fact defense to the appellant. Although the military judge did ask the appellant if he believed the gear was abandoned, he did not provide the appellant with the legal definition of abandoned property. A reading of the case law with respect to this issue makes clear that the legal significance of the term “abandoned” is not one that would be “commonly known and understood by servicemembers.”
Applying the standards of review noted above, we conclude that the record reveals a substantial basis in law and fact to question the appellant’s guilty plea to larceny. Thus, we conclude that the military judge erred by failing to inform the appellant of the defense of mistake of fact and the definitions and legal significance of abandoned property. He did not adequately resolve the issue of mistake of fact. When the appellant informed the military judge that the gear had been left behind as trash, the military judge inappropriately asked the appellant “yes” or “no” type questions that called for legal conclusions. By not explaining the relevant legal terms, the military judge denied the appellant the ability to make an informed decision concerning the answers he provided. In light of these errors, we conclude that the appellant’s guilty pleas to Charge II and its specification are not provident.
We take this opportunity to note that the error in this case does not fall solely on the shoulders of the military judge. At the conclusion of his inquiry into the providence of the guilty plea to the specification under Charge II, he asked counsel if either desired further questioning. Both counsel said they did not. Such a reply is all too common in cases where the issue before us is the providence of the plea. Trial counsel, in particular, should be ever vigilant during the plea providence inquiry and assist the military judge by suggesting areas of further inquiry concerning the elements of the offense or potential defenses.
Conclusion
Accordingly, the findings to Charge II and its specification are set aside. The remaining findings are affirmed….
Notes and questions on United States v. Coffman
1. The kind of problem that arises in Coffman is often called a “mistake of fact.” When a defendant is mistaken about some key fact, will that mistake provide a defense to criminal liability? As is often true in law, it depends. Whether a defendant’s mistake about a factual issue is a defense to a criminal charge is a question of the mens rea requirement of the charged offense. Does larceny, as defined in the Code of Military Justice, require the defendant to know that the property he took belonged to another specific person (and was not abandoned)? Because the military court interprets the applicable statute to require knowledge that the property is owned by someone, the defendant’s mistaken belief that this property had been abandoned is relevant to his criminal liability. Compare to Morisette v. United States in Chapter Two.
2. Looking at the larceny statute in the military code, can you identify other mistakes that would be relevant to a determination of guilt? What if the defendant knew that the gear belonged to a Marine, but mistakenly thought it belonged to one of his close friends in the platoon who “wouldn’t make a big deal” if the defendant took it? What if the defendant mistakenly believed the gear was worth less than \$100, and mistakenly believed that the military larceny statute applied only to property worth over \$100? A mistaken belief about what the statute criminalized would be characterized as a “mistake of law” rather than a mistake of fact. And whether mistakes of law matter to liability is again a question about the mens rea requirements of a particular statute. The key question is whether an accurate understanding of the applicable law is an element of the charged offense. Most statutes do not require knowledge of the law as an element, so it is usually true that “ignorance of the law is no excuse,” or not a valid defense. For more on mistakes of law and the rare circumstances in which a mistake of law can serve as a valid defense, see People v. Marrero in Chapter Seven.
3. For our purposes, Coffman is useful not only to illustrate principles of mistake, but also as a rare instance of close judicial review of a guilty plea. The “providence inquiry” described by the appellate court is essentially a plea hearing, in which a military judge questions the defendant to be sure there is an adequate factual basis for the guilty plea. The appellate opinion that you’ve read then reviews (and reverses) the first judge’s finding that the plea was supported by fact, or “provident.” The basic principle that a guilty plea must have an adequate factual basis applies in state and federal courts as well as military ones. However, state and federal courts rarely scrutinize guilty pleas closely to ensure compliance with this requirement. The vast majority of guilty pleas (and the vast majority of all convictions in state and federal court) are not subject to any appellate review at all. Indeed, as discussed in Chapter Four, civilian courts sometimes accept “fictional pleas,” or guilty pleas to charges that could not possibly be proven given the available evidence. What factors might distinguish military courts from civilian ones, and lead to closer scrutiny of pleas in the military judicial system?
4.
Burglary and Trespass
New Mexico Stat. Ann. 30-16-3. Burglary.
Burglary consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein.
A. Any person who, without authorization, enters a dwelling house with intent to commit any felony or theft therein is guilty of a third degree felony.
B. Any person who, without authorization, enters any vehicle, watercraft, aircraft or other structure, movable or immovable, with intent to commit any felony or theft therein is guilty of a fourth degree felony.
New Mexico Stat. Ann. 30-14-8. Breaking and entering.
A. Breaking and entering consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, where entry is obtained by fraud or deception, or by the breaking or dismantling of any part of the vehicle, watercraft, aircraft, dwelling or other structure, or by the breaking or dismantling of any device used to secure the vehicle, watercraft, aircraft, dwelling or other structure.
B. Whoever commits breaking and entering is guilty of a fourth degree felony.
New Mexico Stat. Ann. 30-1 6 5. Possession of burglary tools.
Possession of burglary tools consists of having in the person’s possession a device or instrumentality designed or commonly used for the commission of burglary and under circumstances evincing an intent to use the same in the commission of burglary.
Whoever commits possession of burglary tools is guilty of a fourth degree felony.
STATE of New Mexico, Plaintiff-Appellee
v.
Franklin D. BEGAYE, Defendant-Appellant
Court of Appeals of New Mexico
505 P.3d 855
March 30, 2021
HANISEE, Chief Judge.
Defendant Franklin Begaye … was arrested on February 28, 2017, following a report of a break-in at Ram Signs, a business in Farmington, New Mexico. Testimony established that around 8:00 p.m. that night, Ram Signs co-owner Michael Mordecki heard a loud bang coming from the front of the building. Soon thereafter, Mr. Mordecki discovered that the front window had been smashed in and called the police. Officer Justin Nichols arrived [and] observed a broken window, an overturned cash box, and disarray around an employee’s desk. Nothing had been taken by the intruder, but the front office area had been rifled through….
Security footage provided by Monica Mordecki, also a co-owner of Ram Signs, revealed that the suspect was a male wearing light shoes, dark pants, and a dark jacket over a light hoodie. In searching nearby areas, Officer Nichols observed Defendant, who matched the description of the individual in the video, walking along Farmington’s main street, and upon approach, Officer Nichols saw what appeared to be shards of glass on Defendant’s jacket…. Officer Nichols detained and searched Defendant, finding a pair of black mechanic’s gloves, and a small red flathead screwdriver in the front pocket of Defendant’s pants….
Defendant was charged with fourth degree felony offenses of non-residential burglary, breaking and entering, and possession of burglary tools. At Defendant’s jury trial, the State presented testimony from, among other witnesses, Mr. and Mrs. Mordecki and Officer Nichols. The State also played the security camera footage, presented photographs of the scene, and admitted the clothing, boots, gloves, and screwdriver that Officer Nichols collected from Defendant on the night of the incident. Defendant was convicted on all charges. This appeal followed.
Defendant argues that his convictions for burglary and breaking and entering violate his right to be free from double jeopardy because both convictions are premised on the same act of a single unauthorized entry…. Double jeopardy protects defendants from receiving multiple punishments for the same offense.
Here, Defendant raises a double-description double jeopardy claim, “in which a single act results in multiple charges under different criminal statutes[.]” State v. Bernal (2006). “In analyzing double-description challenges, we employ [a] two-part test, … in which we examine: (1) whether the conduct is unitary, and, if so, (2) whether the Legislature intended to punish the offenses separately.” … “Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial.” State v. Silvas (2015). Here, the State does not dispute Defendant’s contention that the conduct—the single unauthorized entry—was unitary. Accordingly, we consider the first part of the test to be satisfied…
Where, as here, Defendant’s conduct is unitary, we next analyze legislative intent, looking first to the language of the statutes. “Absent a clear intent for multiple punishments, we apply” [the test from Blockburger v. United States, 284 U.S. 299 (1932).] Blockburger provides that “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” “If one statute requires proof of a fact that the other does not, then the Legislature is presumed to have intended a separate punishment for each statute without offending principles of double jeopardy.” Silvas. “That presumption, however, is not conclusive and it may be overcome by other indicia of legislative intent.”
Since its adoption, the New Mexico Supreme Court has modified the Blockburger test, clarifying that application of the test “should not be so mechanical that it is enough for two statutes to have different elements.” When discerning legislative intent for the purpose of the modified Blockburger test, we may look to the “language, structure, history, and purpose” of the relevant statutes. “If the statutes can be violated in more than one way, by alternative conduct, the modified Blockburger analysis demands that we compare the elements of the offense, looking at the [s]tate’s legal theory of how the statutes were violated.” We may ascertain the state’s legal theory “by examining the charging documents and the jury instructions given in the case.”
Here, Defendant argues that the modified Blockburger test should apply to [his] double jeopardy claim. Defendant contends that within a modified analysis and under the State’s legal theory of the case, breaking and entering was subsumed within the burglary conviction, therefore, double jeopardy bars his conviction under the breaking and entering statute. Defendant further claims, in the alternative, that even if the elements of each statute are distinct, other indicia of legislative intent make clear that the Legislature did not intend to permit separate convictions under both the burglary and the breaking and entering statutes based on a single unauthorized entry. The State argues, in turn, that under either a strict or modified Blockburger test, Defendant’s convictions are not barred by double jeopardy because both offenses require proof of an element the other does not and the Legislature intended to permit separate convictions under the two statutes.
While there is no stated intent that the burglary and breaking and entering statutes allow for multiple punishments, we can presume the Legislature intended to allow separate punishment under the statutes because each provision requires proof of a factual element that the other does not. Section 30-16-3, prohibiting non-residential burglary, reads in pertinent part, “[b]urglary consists of the unauthorized entry of any … dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein.” Meanwhile, Section 30-14-8(A) prohibits breaking and entering and reads, in pertinent part, “[b]reaking and entering consists of the unauthorized entry of any … dwelling or other structure, movable or immovable, where entry is obtained by fraud or deception, or by the breaking or dismantling of any part of the … dwelling or other structure[.]” While both offenses require an unauthorized entry into a dwelling, the burglary statute requires a defendant to have a specific intent “to commit any felony or theft therein.” Further, the breaking and entering statute requires the unauthorized entry to be effectuated by a specified means, which the burglary statute does not. Therefore, under the Blockburger strict elements test, both offenses require proof of an element the other does not, and we can infer therefrom that the Legislature intended to authorize separate punishments under the burglary and breaking and entering statutes.
This inference, however, is not conclusive … [and] we apply the modified Blockburger test to examine other indicia of legislative intent. SeeState v. Ramirez (2016) (explaining that “[w]hen applying Blockburger to statutes that are vague and unspecific or written with many alternatives, we look to the charging documents and jury instructions to identify the specific criminal causes of action for which the defendant was convicted” and to determine whether the Legislature intended to allow separate punishments under multiple statutes).
Although we recognize that the purpose of “New Mexico’s breaking[ ] and[ ] entering statute is itself grounded in common law burglary[,]” each statute presents distinct objectives that we rely on to guide our analysis. To reiterate, breaking and entering requires an unauthorized means of entry, such as an actual “breaking.” In State v. Sorrelhorse (2011), we held that the offense of criminal damage to property was a lesser included offense of breaking and entering because both offenses require actual property damage. Sorrelhorse indicates that, where entry is obtained by breaking or dismantling physical property, the evident purpose of the breaking and entering statute is to punish unauthorized entry accomplished by physical damage to property.
In comparison, while the burglary statute is likewise intended to safeguard possessory property interests, the evolution of common law burglary in New Mexico leads us to believe that the Legislature intended to authorize separate punishments under the statutes. At common law, “[b]urglary consisted of breaking and entering a dwelling of another in the night time with the intent to commit a felony.” Initially, the crime required some physical act or element of force but did not specifically require damage to property. However, as the common law developed, the “breaking” component of common law burglary could be satisfied by a constructive breaking and did not necessarily require a physical act. For example, this Court held that “entry by fraud, deceit, or pretense was sufficient to constitute the ‘unauthorized entry’ requirement, which had been adopted by the New Mexico Legislature instead of the common law requirement of ‘breaking.’ ” Therefore, we conclude the purpose of the breaking and entering statute is sufficiently distinct from the purpose of the burglary statute. The crime of burglary punishes the broader criminal conduct of any unauthorized entry when there is specific criminal intent.
Having concluded that the Legislature intended to allow separate punishments under the two statutes, we turn next to the State’s theory of the case. A comparison of the instructions tendered to the jury for the two offenses establishes that the breaking and entering charge was not subsumed into the burglary charge. To convict Defendant of breaking and entering, the jury was required to find, in pertinent part, that (1) “[D]efendant entered a structure without permission”; and (2) “[t]he entry was obtained by the breaking of a window[.]” Meanwhile, a guilty verdict on the burglary charge required the jury to find, in pertinent part, that Defendant (1) “entered a structure without authorization[,]” and did so (2) “with the intent to commit a theft when inside.”
Although it agrees on appeal that Defendant’s entrance through the window of Ram Signs constituted unitary conduct for the purposes of both statutes, at trial the State did not suggest that the jury rely on the unauthorized entrance as the sole basis for conviction of each crime. Here, the crucial distinction in the two crimes is that the unauthorized entrance required by the burglary charge jury instruction also included the specific intent “to commit a theft when inside.” Hence, the State’s theory of the case for burglary required the jury to find something more than what was required for breaking and entering. Similarly, although the unauthorized entrance through the broken window was a common element of both charges, to convict Defendant of breaking and entering, the jury had to find that the unauthorized entrance was effectuated by breaking the window. That additional element—one that was not required by the burglary instruction—establishes that Defendant’s conviction for breaking and entering could not have been subsumed within the aggravated burglary conviction.
The charging documents specifically relied on the “breaking or dismantling” component of the breaking and entering statute in charging Defendant with breaking and entering, and relied on the “intent to commit a felony or theft therein” component of the burglary statute in charging Defendant with burglary. As such, the State’s theory of the case regarding the conduct required by the two charges was adequately distinguishable and not solely premised on the unitary conduct. Therefore, we hold that Defendant’s convictions for breaking and entering and aggravated burglary did not offend his right to be free from double jeopardy….
Notes and questions on State v. Begaye
1. In addition to the burglary and breaking and entering charges, Franklin Begaye was also charged with possession of burglary tools—namely, gloves and a screwdriver, which were found in his pockets when he was arrested. The possession of burglary tools charge required proof that the items were commonly used in burglaries or that they had in fact been used in a specific burglary. In a portion of the opinion omitted here, the New Mexico court found that there was insufficient evidence that Begaye had actually used gloves or a screwdriver in the break-in at Ram Signs. Thus the court did not have to consider whether a defendant could be convicted of separate offenses of burglary and possession of burglary tools. Can you imagine why a legislature might want to criminalize the possession of burglary tools as a separate offense? Do you think the legislature likely intended to punish burglary, and possession of burglary tools, with separate punishments?
2. Begaye involves a very common situation: multiple criminal statutes could potentially apply to a particular act by a defendant. You have previously encountered this scenario with State v. Cissell in Chapter Three. In that case, the defendant objected because he was convicted and sentenced under a statute with a more severe penalty when another statute, with a less severe penalty, was equally applicable to his conduct. Cissell argued that to charge him with the more severe offense violated equal protection and due process, but the Wisconsin court rejected his claim. Notice that Begaye’s claim here is a little bit different. Begaye raised a double jeopardy challenge, arguing that to punish him for both burglary and breaking and entering is to punish him twice for the same conduct. The Double Jeopardy Clause of the Fifth Amendment provides, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” Whether the Double Jeopardy Clause bars multiple punishments depends on whether the punishments are for “the same offense,” and the analysis of that question can be complex. To evaluate such challenges, most states follow Blockburger v. United States, which is explained and discussed in this case.
3. The facts of Begaye probably coincide with a fairly common perception of the crime of burglary: entry with probable intent to steal. Notably, though, burglary (as defined at common law, and also as defined in most modern statutes) does not actually require any intent to take property or otherwise commit a property offense rather than some other kind of crime. As the court notes, common law burglary was “breaking and entering a dwelling of another in the night time with intent to commit a felony.” Any felony would suffice, so a person who entered another’s dwelling with intent to kill the resident would be guilty of burglary. Modern statutes typically define burglary with an equivalent or similar mens rea requirement – intent to commit a felony or other crime inside the place burglarized. But many jurisdictions have eliminated other aspects of common law burglary, such as the requirement of “breaking,” as the Begaye court mentions and as discussed further in the next note. Modern burglary statutes also often omit any requirement that the entry be into a dwelling or that it take place at night.
4. Again, the Begaye court describes common law burglary as “breaking and entering a dwelling of another in the night time with intent to commit a felony.” What is a “breaking,” as that term was understood at common law? Must a lock, a window, or some other part of the property actually get broken? Early judicial accounts of burglary required some act of physical force to enter the property, though this “breaking” by force did not need to cause lasting damage to the property. For example, many courts held that opening an unlocked but closed door or window was a sufficient “breaking” for the crime of burglary, but simply walking through an open door was not breaking. “As the common law developed,” the Begaye court tells us, “the ‘breaking’ component of common law burglary could be satisfied by a constructive breaking and did not necessarily require a physical act.” A person who tricked a homeowner into letting him in – pretending to be a city inspector, for example – could be guilty of burglary by “constructive” breaking.
5. The usual mens rea of burglary – intent to commit a felony – is often described as a “specific intent” requirement. As discussed above, larceny is also often described as a “specific intent” crime, given the typical requirement of intent to permanently deprive the owner of the property. Courts often distinguish between “specific intent” and “general intent” crimes. These terms developed at common law and do not have a single uniform definition, but you should know how the terms are most commonly used. Usually, a description of a crime as a “specific intent” crime means that the crime is defined to include some mental state requirement beyond the defendant’s mental state regarding the actus reus of the offense. In contrast, the classification of an offense as one of “general intent” usually means that the only mens rea requirement is one related to the defendant’s mental state regarding the conduct elements of the offense. This explanation will probably be hard to grapple in the abstract, so an example is useful. In Begaye, the breaking and entering statute would probably be treated as a “general intent” offense. Notice that the New Mexico breaking and entering statute does not actually specify a mental state requirement at all. But given courts’ usual presumptions against strict liability, and given the mens rea default rules discussed in Chapter Two, a court would probably require that the defendant commit the actus reus of the offense – unauthorized entry – with at least knowledge or recklessness. The prosecution thus must establish something about the defendant’s mental state, but only the defendant’s mental state toward the actus reus of the offense: the defendant knew she was entering without authorization, or the defendant was at least reckless with regard to whether she was entering without authorization. Contrast that “general intent” with burglary, which requires evidence of a further mental state – namely, a plan to do something specific (commit a crime) once inside the place entered. In rejecting the defendant’s double jeopardy claim, one factor emphasized by the Begaye court is that burglary is a “specific intent” crime while breaking and entering is not.
6. Given that burglary is entry with intent to commit any felony, prosecutors have often charged this offense in the context of domestic violence, when a person enters a residence in violation of a protective order or with intent to harm someone inside in the resident. Burglary statutes have even been used to prosecute persons for entering what is technically their own legal residence. In that context, burglary statutes sometimes come into conflict with “anti-ousting” statutes which provide that a husband and wife cannot exclude one another from their shared dwelling. Consider State v. Lilly, below.
Ohio R.C. 2911.12. Burglary; trespass in a habitation[ ]
(A) No person, by force, stealth, or deception, shall do any of the following:
(1) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense;
(2) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with purpose to commit in the habitation any criminal offense;
(3) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, with purpose to commit in the structure or separately secured or separately occupied portion of the structure any criminal offense.
(B) No person, by force, stealth, or deception, shall trespass in a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present.
(D) Whoever violates division (A) of this section is guilty of burglary. A violation of division (A)(1) or (2) of this section is a felony of the second degree. A violation of division (A)(3) of this section is a felony of the third degree.
(E) Whoever violates division (B) of this section is guilty of trespass in a habitation when a person is present or likely to be present, a felony of the fourth degree.
Ohio R.C. 2911.21. Criminal trespass
(A) No person, without privilege to do so, shall do any of the following:
(1) Knowingly enter or remain on the land or premises of another…
Ohio R.C. 3103.04. Interest in the property of the other
Neither husband nor wife has any interest in the property of the other, except [as provided by a statutory duty to support one’s spouse], the right to dower, and the right to remain in the mansion house after the death of either. Neither can be excluded from the other’s dwelling, except upon a decree or order of injunction made by a court of competent jurisdiction.
The STATE of Ohio, Appellant
v.
Harold Dean LILLY, Appellee
Supreme Court of Ohio
87 Ohio St.3d 97
Decided Oct. 20, 1999
[Syllabus by the Court:] On February 5, 1997, Harold Dean Lilly, Jr., defendant-appellee, was indicted on nineteen criminal counts: twelve counts of rape, two counts of attempt to commit rape, three counts of possessing criminal tools, one count of kidnapping, and one count of burglary. All offenses were alleged to have been against his estranged wife, Jacqueline K. Lilly. Count nineteen of the indictment [charging burglary] stated that on or about January 26, 1997, defendant had trespassed in Jacqueline Lilly’s residence when she was present or likely to have been present, with the purpose of committing a criminal offense therein. Defendant pled not guilty on February 11, 1997 to all of the charges.
Defendant and Jacqueline K. Lilly (“Mrs. Lilly”) married in August 1988. They separated in early 1996 and got back together in September of that year. In November 1996, they separated again… [In January 1997] Mrs. Lilly … leased an apartment in West Carrollton, Ohio…. Defendant moved in with his own mother after the couple separated.
Mrs. Lilly testified that on January 26, 1997, she and the defendant spent the morning and afternoon together doing various errands. The defendant repeatedly asked Mrs. Lilly if they could watch the Super Bowl that evening together, but she declined. Mrs. Lilly testified that over the course of the evening, defendant asked her to have sex with him and she asked him to leave. She told the jury that defendant became angry, slapped her repeatedly, and burned her with a cigarette. She further explained that, to avoid further harm, she engaged in various sexual acts with defendant, which Mrs. Lilly testified were against her will.
Mrs. Lilly testified that later in the evening, the defendant drove her to two bars. At the 1470 Club, in Kettering, Ohio, Mrs. Lilly quietly asked one of the bar employees to call the police. After defendant followed her into the women’s restroom at the bar, one of the bar’s security guards went into the restroom to check on Mrs. Lilly. The security guard told defendant that he wanted to speak to Mrs. Lilly alone and defendant refused. The security guard pushed defendant out of the way while Mrs. Lilly and a female bar employee ran into the back office and locked the door. After the defendant’s attempts to kick the door in were unsuccessful, he fled.
Mrs. Lilly was taken to the hospital to be examined and then to the police station to be interviewed… Police officers then took her to her apartment to get some clothing and personal items in order for her to stay in a shelter. At her apartment, Mrs. Lilly discovered that her purse was missing and about six pairs of her jeans had been ripped up. Officers noticed that the attic cover was open [and] smelled fresh cigarette smoke.
After Mrs. Lilly had collected her belongings and was ready to get in her car, she discovered that her automatic garage door opener was missing from her car. She tried to start her car, and when it would not start, officers investigated and found that the car’s spark plug wires had been detached. In addition, Mrs. Lilly noticed a pair of defendant’s gym shoes that were not there previously. At approximately 8:00 a.m. on January 27, officers drove Mrs. Lilly to a shelter.
Detective Mark Allison testified that on the afternoon of January 27, he informed defendant that a warrant had been issued for his arrest. The next day, Detective Allison interviewed defendant… Defendant admitted to the officers that he drove back to Mrs. Lilly’s apartment in the early morning of January 27…. Defendant stated that he had left the door unlocked prior to leaving with Mrs. Lilly earlier in the evening so he could get back in. Defendant told the detectives that he ripped up several pairs of Mrs. Lilly’s jeans, yanked the spark plug wires on her car, and took her purse. Defendant stated that he arrived at the apartment around 12:30 a.m. on January 27, after leaving the bar and was there until 12:00 p.m. that day. Defendant admitted that he was hiding at the apartment when police searched it.
At trial, Mrs. Lilly testified that the lease for her apartment was in her name and the defendant did not have a key. Mrs. Lilly testified that defendant did not contribute money for her apartment. She further testified that defendant knew that it was her place.
During the trial, the state withdrew one count of rape and one count of attempted rape. The jury returned a verdict of guilty on the burglary charge and not guilty on the remaining charges. Defendant appealed his burglary conviction, and the Montgomery County Court of Appeals reversed the trial court’s conviction, finding that [a civil anti-ousting law] negated the state’s proof of the element of trespass as a matter of law.
Opinion
LUNDBERG STRATTON, J.
This case presents the court with the question of whether R.C. 3103.04 precludes prosecution of one spouse for burglary committed in the residence of the other spouse. For the reasons that follow, we hold that a spouse may be criminally liable for trespass and/or burglary in the dwelling of the other spouse who is exercising custody or control over that dwelling. R.C. 3103.04 is inapplicable in criminal cases.
In this case, the evidence showed that defendant entered by deception the separately leased property of his estranged spouse with intent to commit a crime. However, the court of appeals concluded that in the absence of a court order, R.C. 3103.04 prevented Mrs. Lilly from excluding defendant from her apartment and therefore the element of trespass could not be proven. Although the defendant did not raise this alleged R.C. 3103.04 privilege in the trial court, the court of appeals, nevertheless, found that it amounted to plain error. We disagree…
At common law, husband and wife were regarded as one. The legal existence of the wife during coverture was merged with that of her husband. As such, the wife was incapable of making contracts, of acquiring property, or of disposing of property without her husband’s consent. In pursuance of a more liberal policy in favor of the wife, statutes were passed across the country to relieve the married woman from the disabilities imposed upon her as a femme covert by the common law.
…[I]n 1887, the General Assembly enacted what is now R.C. 3103.04 to “define the rights and liabilities of husband and wife.” 84 Ohio Laws 132. The Act related both to the relationship between husband and wife and to the rights of each in the property of the other. [After some slight amendments over the years,] [t]he statute today is reflected in R.C. 3103.04:
“[Interest in the property of the other]
“Neither husband nor wife has any interest in the property of the other, except [specific statutory provisions]. Neither can be excluded from the other’s dwelling, except upon a decree or order of injunction made by a court of competent jurisdiction.”
… Notably, R.C. 3103.04 is situated in the domestic relations chapter of the Revised Code. Further, a review of the 1887 Act reveals that it primarily concerned property rights as they relate to domestic relations.
A review of other jurisdictions reveals seven other jurisdictions with a statute similar to R.C. 3103.04. … Significantly, we note that our review indicates that none of these jurisdictions applies this civil statute in criminal contexts.
Thus, we conclude that R.C. 3103.04 was intended to address property ownership rights of married persons, matters of a civil nature. Privileges of a husband and wife with respect to the property of the other were not meant to be enforced criminally and do not affect criminal liabilities. Because we find that the General Assembly never intended for R.C. 3103.04 to apply in criminal contexts, we must turn to the Criminal Code to address this issue.
The crime of burglary, with which defendant was charged, provides:
“(A) No person, by force, stealth, or deception, shall do any of the following:
“ * * *
“(2) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with purpose to commit in the habitation any criminal offense * * *.” R.C. 2911.12(A)(2).
“Criminal trespass” is defined as:
“(A) No person, without privilege to do so, shall do any of the following:
“(1) Knowingly enter or remain on the land or premises of another.” R.C. 2911.21.
The law of burglary evolved out of a desire to protect the habitation. Because intrusions into the habitation are dangerous to occupants, “the offense is viewed as serious, because of the higher risk of personal harm involved in maliciously breaking and entering an occupied, as opposed to an unoccupied, structure.” 1974 Legislative Service Commission Comment to R.C. 2911.12.
Because the purpose of burglary law is to protect the dweller, we hold that custody and control, rather than legal title, is dispositive. Thus, in Ohio, one can commit a trespass and burglary against property of which one is the legal owner if another has control or custody of that property.
A majority of other jurisdictions that have addressed this issue have found that the entry of an estranged spouse upon the property of the other spouse constitutes an unauthorized entry to support charges of trespass and burglary….
Civil, peaceful avenues of redress exist to enforce the rights of a person who believes he or she has been wrongfully excluded from certain property. There is no privilege to use force, stealth, or deception to regain possession. See R.C. 2911.21(C) (“It is no defense to a charge under this section that the offender was authorized to enter or remain on the land or premises involved, when such authorization was secured by deception.”).
In this case, there is no evidence that defendant had any right to custody or control of the leased property. The apartment was leased solely in Mrs. Lilly’s name. Defendant did not pay any part of the rent on Mrs. Lilly’s apartment. While defendant claims that he may have stayed at the apartment occasionally and performed maintenance tasks there for Mrs. Lilly, defendant never lived at the apartment, did not have a key to the apartment, and did not keep any of his belongings in the apartment. Accordingly, it was reasonable for the jury to find that when, without permission, defendant entered Mrs. Lilly’s apartment through a door he had previously by deception left unlocked, he trespassed. When he trespassed in Mrs. Lilly’s apartment for the purpose of committing a crime, i.e., theft of her purse and damage to her property, it was reasonable for the jury to conclude that defendant committed a burglary.
Thus, there was ample evidence at trial for the jury to have determined that the defendant trespassed in Mrs. Lilly’s dwelling and that he did so with the purpose or intent of committing a crime. Sufficiency of the evidence is considered in a light most favorable to the prosecution. As such, we find that there was sufficient evidence of burglary to sustain his conviction. Therefore, we reverse the judgment of the court of appeals and reinstate defendant’s conviction for burglary…
Notes and questions on State v. Lilly
1. In Ohio, and in many other jurisdictions, the offense of burglary is now defined a trespass with the intent to commit a crime (other than the trespass itself) in the place being entered. (What crime did Lilly intend to commit in his wife’s apartment, according to this court?) But as you will see in Chapter Eight, doctrines of criminal attempt already impose criminal liability for those who intend to commit an offense and take steps toward the commission of that offense. Someone who enters a home with intent to steal from it is likely liable for attempted theft. Why, then, is it necessary to have burglary as a separate criminal offense? The drafters of the Model Penal Code considered this issue, but ultimately decided to keep a burglary offense as part of their recommended code. As the drafters explained,
The critical issues to be confronted in the law of burglary are whether the crime has any place in a modern penal code and, if so, how it should be graded. The first question arises because of the development of the law of attempt. Traditionally, an independent substantive offense of burglary has been used to circumvent unwarranted limitations on liability for attempt. Under the Model Code, however, these defects have been corrected. It would be possible, therefore, to eliminate burglary as a separate offense and to treat the covered conduct as an attempt to commit the intended crime plus an offense of criminal trespass. Section 221.1 nevertheless continues burglary as an independent substantive offense carrying felony sanctions. In part, this solution reflects a deference to the momentum of historical tradition. More importantly, however, the maintenance of a crime of burglary reflects a considered judgment that especially severe sanctions are appropriate for criminal invasion of premises under circumstances likely to terrorize occupants.
Model Penal Code 221.1, explanatory note.
2. Note that Harold Lilly was indicted on nineteen counts, including twelve counts of rape, two counts of attempted rape, and a kidnapping charge. Note also that there were witnesses to some of Mr. Lilly’s conduct: security guards at a bar tried to protect Jacqueline Lilly from her husband, and a female bar employee fled to a back office with Jacqueline. But Harold Lilly was acquitted of all charges except the burglary charge. We don’t have access to the jury’s deliberations, but can you imagine possible reasons that the jury might have convicted only on the burglary charge and acquitted on all others?
3. Does the Lilly court rely on a sharp dichotomy between civil law (such as the anti-ousting statute) and criminal law? Or does the court’s decision tend to collapse the distinction between civil and criminal law? Professor Jeannie Suk has characterized responses to domestic violence like the one we see in Lilly as a form of “state-imposed de facto divorce.” She writes,
…The Ohio Supreme Court took the position that the criminal law would ignore the anti-ousting statute. The anti-ousting provision “was intended to address property ownership rights of married persons, matters of a civil nature. Privileges of a husband and wife with respect to the property of the other were not meant to be enforced criminally and do not affect criminal liabilities.” Because the anti-ousting statute regulated in the domains of property and family relations, it simply did not apply in a criminal case…
What is notable here is the purportedly easy division of the world into criminal and civil spheres of regulation. If applied, the anti-ousting statute would have directly conflicted with the spousal burglary conviction. According to the theory the court adopted, criminal and civil spheres were mutually exclusive and thus the civil anti-ousting statute, which regulated property interests, could have no effect on the criminal law question of burglary.
But the crime of burglary does not operate apart from a property regime. The court’s assertion that property law and criminal law represented wholly separate spheres deviated from the common law relation between burglary and property law. Classically, burglary law was dependent upon the underlying allocation of property rights. The criminal law question of whether a person committed burglary depended on property law for its application. The underlying property arrangement determined whether his entry was burglarious.
The Lilly court indicated its intention to treat the criminal and civil spheres as wholly separate for purposes of this case. But by declining to apply the anti-ousting statute in a burglary case, the court was actually allowing criminal law, as [domestic violence] policy, to trump the law of property. The effect was to reallocate property rights between spouses such that burglary would [apply.]
… What we see here is a reversal of the dependence of burglary law on the law of property. Whereas traditionally, burglary depended on the prior allocation of possessory rights determined by property law, we now see the criminal law subordinating property law to its interests, in effect reallocating private rights. While property law had previously set the conditions for burglary, criminal law now takes precedence in defining property rights in this DV context. … Even as it claims to treat civil interests as a separate sphere, the criminal law, through its coercive power and its claim to the public interest, has an unmatched capacity to reorganize private interests.
Jeannie Suk, Criminal Law Comes Home, 116 Yale L.J. 2 (2006).
4. Given the serious allegations against Harold Lilly, and given the jury’s failure to convict on any of the rape and kidnapping charges, one might be relieved that burglary was available as a proxy charge in this case. Keep in mind that the same broad criminal laws that will make it easier to convict Lilly of something will make it easier to convict other defendants, too. Trespass is even easier to prosecute than burglary, and in some contexts civil rights advocates have contended that trespass laws are used to harass and oppress persons of color. In 2012, a number of civil rights organizations filed a federal lawsuit to challenge “Operation Clean Halls,” an NYPD program in public housing projects and other large residential buildings. Under the program, police patrolled the buildings and subjected many occupants to stops and frisks, often filing trespass charges against those who could not prove residence in the building. “Many tenants who live in Clean Halls buildings are restricted in their ability to maintain familial ties and friendships due to the use of aggressive police tactics in their homes,” the New York Civil Liberties Union explained in a public statement about its lawsuit. “The program is part of a citywide practice of suspicionless police stops and arrests that primarily impact communities of color.” The lawsuit, Ligon v. City of New York, eventually settled (along with the more widely publicized lawsuit challenging NYPD stop-and-frisk practices, Floyd v. City of New York). But Operation Clean Halls continued in a modified form under a new name, the Trespass Affidavit Program, until it was shut down in the fall of 2020. Other cities continue to operate Trespass Affidavit Programs, under which building owners submit lists of building residents to law enforcement and invite law enforcement to patrol the buildings and arrest non-residents.
Check Your Understanding (5-2)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Robbery
N.J.S.A. 2C : 15-1a(1)
a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit any crime of the first or second degree.
An act shall be deemed to be included in the phrase “in the course of committing a theft” if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.
b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.
STATE of New Jersey
v.
Francisco SEIN
Supreme Court of New Jersey
590 A.2d 665
Decided May 21, 1991
CLIFFORD, J.
The narrow issue on this appeal … is whether the sudden snatching of a purse from the grasp of its owner involves enough force to elevate the offense from theft from the person to robbery as defined by N.J.S.A. 2C:15-1a(1)….
-A-
On August 27, 1986, Edythe Williams cashed her unemployment check at Proper Check Cashing, a concession located in the Woolworth store on Main Street in Paterson. Mrs. Williams placed the proceeds in a zipped compartment in the strapless, clutch-type purse that she carried under her arm. After purchasing a notebook in Woolworth’s, she left the store and headed for her car, which she had parked a couple of blocks away.
Mrs. Williams arrived at her car intending to drop off the notebook and continue shopping in the area. She went to the passenger side and put her key in the lock, all the while carrying the purse under her right arm. As Mrs. Williams stood in the street, defendant, Francisco Sein, walked up and stood close beside her on her left. Mrs. Williams turned to face the man, thinking he had approached to ask a question, but defendant said nothing. Instead, “he reached across [her] and just slid [her] pocketbook–which wasn’t very hard to do–from under [her] arm and took off,” running toward Main Street. There was no evidence that defendant used any force other than that required to slide the purse from beneath Mrs. Williams’ arm.
The police apprehended defendant, who was subsequently indicted for robbery… At trial, defendant moved at the conclusion of the State’s case for a judgment of acquittal in respect of the robbery charge, contending that the case should proceed only on the lesser-included offense of theft from the person, defined by N.J.S.A. 2C:20-3a as the “unlawful[ ] tak[ing], or exercis[ing of] unlawful control over, movable property of another with purpose to deprive him thereof.” The crux of defendant’s argument was that there was no evidence in the record that the taking of Mrs. Williams’ purse was accompanied by the use of force against her person, a requirement for conviction underN.J.S.A. 2C:15-1a(1). The State, on the other hand, urged that a judgment of acquittal would be improper because the Legislature intended that the force used to remove the purse from the victim was sufficient to elevate the unlawful taking to a robbery. The trial court denied defendant’s motion, and the jury subsequently found defendant guilty of second-degree robbery.
On appeal, defendant contended that the trial court had erred by submitting the second-degree-robbery charge to the jury because there was no evidence that defendant had used force on Mrs. Williams in the course of the purse-snatching. The Appellate Division agreed… The court reversed the robbery conviction and remanded for the entry of a judgment of conviction for theft and for resentencing for that offense.
Before us, the State argues that the Appellate Division’s construction of the “uses force upon another” language in the robbery statute, N.J.S.A. 2C:15-1a(1), both misconstrues the plain meaning of the statute and contravenes the relevant legislative intent. According to the State, the Appellate Division’s standard will “change the focus of a robbery committed through the use of force from the conduct of the perpetrator to the nature of the property that he stole * * * and the particular characteristics of the victim as well as the victim’s actions.” In addition, the State submits that the standard established by the Appellate Division to determine the amount of force necessary to effect a robbery is “inexact and unworkable,” and that therefore jurors will be required to use concepts founded in the science of physics to determine whether more force was used than that quantum necessary merely to remove the object.
-B-
Cases involving “snatching” have required courts to determine where to draw the line between robbery and the lesser offense of larceny from the person. A certain amount of “force” is necessary to take property from the person of another, but whether the amount necessary merely to accomplish that taking is sufficient to warrant the more serious penalties associated with robbery has vexed those courts that have considered the question.
Some jurisdictions have construed the term “force” as used in the state’s robbery statute to mean mere physical force or energy, while others have rejected hypertechnical distinctions in favor of a view that acknowledges that snatching an object from the grasp of the owner increases the risk of danger to the victim and justifies enhanced punishment. Those jurisdictions implicitly recognize that victims do not turn over their property willingly, even if they do not resist or struggle with a thief. Thus, the amount of physical energy necessary to take the property is deemed sufficient to support a robbery conviction.
The predominant view, however, is that there is insufficient force to constitute robbery when the thief snatches property from the owner’s grasp so suddenly that the owner cannot offer any resistance to the taking. See W. LaFave & A. Scott, Criminal Law § 8.11(d), at 781 (2d ed.1986). This “majority rule” has been set forth in the following terms:
[A] simple snatching or sudden taking of property from the person of another does not of itself involve sufficient force to constitute robbery, though the act may be robbery where a struggle ensues, the victim is injured in the taking, or the property is so attached to the victim’s person or clothing as to create resistance to the taking.
People v. Patton (Ill. 1979).
The legislative history of New Jersey’s robbery statute, N.J.S.A. 2C:15-1, when read in the context of the Code Commentary on theft, reveals that our Legislature intended to adopt the majority rule.
-C-
At common law, robbery was defined in New Jersey as “the felonious taking of personal property from the person or custody of another by force or intimidation.” The pre-Code robbery statute, N.J.S.A. 2A:141-1, codified the common law.
The Appellate Division summarized the general state of the law of robbery under the pre-Code statute inState v. Culver (1970), where it stated:
N.J.S.A. 2A:141-1 provides that any person who forcibly takes from the person of another money or personal goods and chattels of any value whatever by violence or putting him in fear, is guilty of a high misdemeanor. Thus, force or intimidation is a necessary element of the crime and must precede or be concomitant with the taking. The property stolen need not have been in contact with the person from whom it was taken at the time it was stolen, and if taken by fear it must be the result of such demonstration or threat as to create reasonable apprehension on the part of the victim that, if the theft were resisted, force would be used. While a secret or sudden taking of property from the owner without putting him in fear and without open violence is deemed larceny, if there be a struggle to keep it or any violence or disruption, the taking is robbery.
The foregoing summary suggests that [before 1979] New Jersey followed the majority view as stated in People v. Patton, above.
In 1979, the Legislature revamped the criminal laws by enacting the New Jersey Code of Criminal Justice… Under [the Code’s robbery statute] as originally enacted, “[a] person [was] guilty of robbery if, in the course of committing a theft, he: (1) [i]nflicts bodily injury upon another; or (2) [t]hreatens another with or purposely puts him in fear of immediate bodily injury; or (3) [c]ommits or threatens immediately to commit any crime of the first or second degree.”
In 1981, however, the Legislature amended N.J.S.A. 2C:15-1a(1) to read that a person is guilty of robbery if in the course of committing a theft he “[i]nflicts bodily injury or uses force upon another.” L. 1981, c. 22, § 1 (emphasis added). The Legislature’s intention regarding the addition of the “or uses force” language is made clear by the following Statement of the Senate Judiciary Committee:
Senate Bill No. 885 amends N.J.S.A. 2C:15-1 to clarify that a person is guilty of robbery if he uses any force upon another in the course of committing a theft. Under present law only a person who inflicts bodily injury upon another in the course of committing a theft is guilty of robbery. Senate Bill 885 extends the definition of robbery to cover the so-called “blind-side” mugging. This occurs when a person commits an act of theft-for example a purse snatching-by approaching the victim from behind and using some degree of force to wrest the object of his theft from the victim. Often, however, no bodily injury is inflicted in these cases and therefore the offenses committed could be found to be theft rather than robbery.
[Statement of the Senate Judiciary Committee to Senate Bill 885 (Apr. 21, 1980) (emphasis added).]
The State contends that that Statement shows that the Legislature contemplated that a sudden, surprise snatching of property held in the grasp of another or in some way in contact with the person of another involves the use of force sufficient to elevate the taking to a robbery.
To the contrary, that the Legislature intended to broaden the concept of force beyond the pre-Code understanding of that term is not at all clear. The Senate Judiciary Committee Statement begins by saying the amendment is to “clarify that a person is guilty of robbery if he uses force upon another in the course of committing a theft.” (Emphasis added.) That suggests that the omission of the “or uses force” language in the Code as originally enacted in 1979 was an oversight. In amending N.J.S.A. 2C:15-1a(1), the Legislature merely intended to clarify that the type of force required to support a robbery conviction under the pre-Code statute still would be sufficient to elevate a theft to a robbery.
As we indicated earlier, “a simple snatching or sudden taking of property from the person of another does not of itself involve sufficient force to constitute robbery” under the pre-Code statute, and nothing in the Senate Judiciary Committee Statement undercuts that standard. Although the Committee Statement refers to a “purse snatching” as an example of the conduct the amendment was intended to cover, it goes on to state that snatchings rising to the level of robbery include only those that involve “some degree of force to wrest the object” from the victim. (Emphasis added.) To “wrest” is to “pull, force, or move by violent wringing or twisting movements.” Webster’s Third New International Dictionary 2640 (1971). The Legislature apparently determined that the violence associated with “wresting” is deserving of more severe punishment. It did not, however, intend to eliminate the requirement that robbery by use of force include force exerted “upon another.”
Moreover, the Commentary to the Code definition of “theft” strongly suggests that the Legislature did not intend that a surprise purse-snatching unaccompanied by injury, threat, struggle, or attempted resistance would constitute the crime of robbery. In discussing N.J.S.A. 2C:20-3 [New Jersey’s theft statute], which provides in pertinent part that “a person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof,” the Legislature made clear the following:
The crime here defined may be committed in many ways, i.e., by a stranger acting by stealth or snatching from the presence or even the grasp of the owner or by a person entrusted with the property as agent, bailee, trustee, fiduciary or otherwise.
[II New Jersey Penal Code: Final Report of the New Jersey Criminal Law Revision Commission.]
The theft statute thus includes purse-snatchings from the grasp of an owner, while the robbery statute includes purse-snatchings that involve some degree of force to wrest the object from the victim. The only way to reconcile the two statutes is to hold that robbery requires more force than that necessary merely to snatch the object.
If the Legislature had intended that the amount of force necessary to snatch the object would be sufficient to constitute a robbery, it could have amended the theft statute to indicate that it includes only those snatchings in which the object of the theft is loose or can be cut loose, but not those in which the object must be removed from the victim. It did not do so.
The standard we adopt today continues the focus of a robbery on the conduct of the perpetrator rather than on the nature of the property stolen or the characteristics of the victim and his or her actions. Furthermore, we do not agree with the State’s contention that this standard is “inexact and unworkable.” If in fact jurors will henceforth be required to resort to concepts founded in the science of physics to determine whether more force was used than that quantum necessary merely to remove the object, that is hardly a dismaying by-product of a correct interpretation of the statute. Such concepts are used frequently by juries in their deliberations and are entirely within their ken.
-D-
… There is no indication that the Legislature intended to change the pre-Code rule that “a secret or sudden taking of property from the owner without putting him in fear and without open violence is deemed larceny, [but] if there be struggle to keep it or any violence or disruption, the taking is robbery.” To the extent that the robbery statute and the Senate Judiciary Committee Statement are burdened with ambiguity, as so persuasively argued by the Chief Justice in his dissent, that ambiguity surely cannot inure to the benefit of the State. “[P]enal statutes that are open to more than one reasonable construction must be construed strictly against the State.”
Because there is no evidence that defendant’s conduct involved the type of force sufficient to elevate the theft to a robbery under N.J.S.A. 2C:15-1a(1), the judgment of the Appellate Division is affirmed.
WILENTZ, C.J., dissenting.
I would hold that, under the statutory amendment, all purse snatchings are robberies, regardless of the amount of force used. I believe this construction of the amendment achieves the overriding goal of the Legislature: to deter and to prevent purse snatchings, not some kind, one kind, or a particular kind, but all purse snatchings.
I recognize the legitimacy of the majority’s decision. The issue of statutory interpretation facing the Court is difficult. But I cannot accept what I believe is an interpretation that falls far short of the legislative intent even in the face of the persuasive analysis in its support. A basic societal interest is left unprotected despite the Legislature’s clear intent to protect it. It is our interest in personal safety.
Determining the appropriate judicial role in construing statutes that do not accurately reflect the Legislature’s intent is sometimes problematic. That problem is magnified as the distance between the legislative intent and the Legislature’s language grows. Where, as here, a criminal statute is involved, the judiciary’s attempt to bridge the gap can conflict with notions of fairness and due process: it is the criminal statute that determines a crime—we do not jail people for violating legislative intent.
This case presents an extreme example of the problem. The Legislature clearly intended to make every purse snatching a robbery and just as clearly did not say so. The question is how far the judiciary should go to effect the legislative purpose despite the lack of legislative language.
…A literal application of the “uses force upon another” language to the offense of purse snatching suggests that force used solely upon a purse would be insufficient to elevate the crime from theft to robbery. Pursuant to such a construction, one who snatched a purse without touching the victim, even if he exerted a great deal of force in order to pull a purse tightly clutched under his victim’s arm, would not be guilty of robbery. A robbery would result only if he pulled the owner’s hand itself, pushed her arm to loosen the clutch, or in some way used force upon the person as well as on the purse. That reading of the statute, closely conforming to the statutory language, would remove a substantial portion of purse snatching offenses from the robbery statute, contrary to the Legislature’s intent… The majority and this dissent both recognize that the statute should not be interpreted so literally. We differ, however, in our reading of the legislative history concerning the nature and strength of the legislative purpose, and therefore differ concerning the appropriate statutory interpretation.
I disagree with the majority’s interpretation of the Judiciary Committee’s Statement…. The Statement … taken as a whole, clearly suggests that the Legislature (to the extent the Judiciary Committee is its surrogate) intended to make all purse snatchings robberies, as did the Governor when he signed the bill.
… Certainly, given the text of the statutory amendment and the less than perfect clarity of the Committee Statement, one cannot fault the majority for concluding that the nature of the force determines the quality of the offense. My own reading of the legislative intent arises from other sources as well, however, sources of which we can fairly take judicial notice. Those sources are the vast increase in muggings and purse snatchings that preceded the law and society’s acute concern over these crimes.
For more than a decade we have witnessed a seemingly unprecedented upsurge in crime. Prominent among these offenses have been “street crimes,” stranger-to-stranger offenses including ordinary muggings (usually thought to include some degree of violence or its threat) and “purse snatchings,” meaning just what it says, not necessarily implying any violence or force whatsoever. That no one could any longer safely walk the streets produced fear and fury on the part of society. Purse snatching was particularly loathsome, given its unpredictability, lack of warning, almost total randomness, and the fact that women were almost invariably the victims. Force and violence were often present and certainly they were major elements of society’s concern. But it was the offense itself, and its usual attributes, the insult and offense to the person, the potential danger, the helplessness, and the utter unredeemable ugliness of being “attacked”—for that is the universal perception–with or without force, by some amoral stranger who takes command of your belongings—it was the offense itself, purse snatching, regardless of its differing qualities, that was society’s concern. I find it most difficult to believe that either society or the Legislature ever intended to further penalize only “wresting” purse snatchings, but not the swift skillful removals that involve practically no force. Society and the Legislature condemn this offense regardless of whether the victim resists or whether because of “wresting,” she becomes immediately aware of the violation. This is not to say that the Legislature could not have selected the extent of force as a critical factor in elevating the crime from theft to robbery. Certainly, the dangers are increased when a thief uses excessive force, whether because of an utter disregard for the victim or because of the necessities caused by her resistance; and to the extent force bears on the victim’s “awareness,” with its resulting fear, that is one of the most offensive aspects of the crime. The Legislature did not, however, intend to define the crime by the variables of fear and force. Rather, it intended to define all purse snatchings as robberies.
… It seems most unlikely that the Legislature sought to transform a thief into a robber only if the thief encounters resistance while accomplishing his goal. Such a result amounts to equating the defendant’s blameworthiness with the victim’s reflexes. A thief who finds it necessary to tug the purse from under a woman’s arm or from her instinctively tightened grasp is deemed a robber, while one who slides the purse out and removes it, as in this case, remains merely a thief. Similarly, one who takes a purse suspended by a shoulder strap or chain while the woman’s arm is resting on the purse is a robber, while one who covertly lifts the purse without engaging her conscious or inertial resistance is but a thief.
…Deterrence of purse snatching is what the Legislature wanted to accomplish, and it would be most surprised to learn that all it had deterred was purse snatching involving wresting, and had left out the many purse snatchers who go out ready and willing to wrest, but who, because of some fortuitous circumstance, grab the purse without such consequence. The announcement it wanted to make to society is that all purse snatchings are robberies so that the offenders should know it when they go out in the night—and more and more frequently, even in the day—to prey on their helpless victims.
The Legislature knew what too many of us know—that it is not only the one on a motor bike who takes the tourist’s purse as he strolls on the street, not only the person on the down escalator who grabs the shoulder bag from the victim on the up escalator and dashes off into the crowd, but more so it knew what is not shown on the television ads—the street criminal who pulls your purse out from under your arm, from behind, or face-to-face, without noticeable force and without threat other than the perceived possibility that resistance may lead to injury or even death. In each case the victim does not resist, and the only force may be the lifting of the object, but surely this is the force that the Legislature had in mind.
This construction of the statute is, of course, not limited to purses or to women. A person commits a robbery whenever he or she unlawfully takes an article held by or within the possession of a person, or attached to the outside of a person’s garments. This definition encompasses any kind of article, not just a purse, and it would presumably extend to pickpocketing, although the legislative history, overwhelmingly indicating an intent to reach purse snatchers, provides no indication of an intent to reach the pickpocket. If, as is entirely possible, the Legislature did not intend so broad a scope for its new definition of robbery when applied to pickpocketing, legislative amendment may be needed. Distinctions exist between the two: purse snatching is usually accompanied by some degree of force and victim awareness, while pickpocketing is usually characterized by stealth, lack of force, and no victim awareness.
…I would reverse the judgment of the Appellate Division and reinstate the guilty verdict.
Notes and questions on State v. Sein
1. As noted in the introduction to this chapter, robbery is often classified as a “violent crime” rather than a property offense. Robbery does involve the taking of property, but it typically requires the taking of property by a specific means: the use or threat of physical force. The exercise of force (or the threat to exercise it) is a frequent concern of criminal law, and the next chapter will examine crimes involving force or violence in much greater detail. Once recurring question will be the one raised here in Sein: what exactly does the word “force,” or the word “violence,” mean when it is used in a criminal statute? About a year after deciding State v. Sein, the New Jersey Supreme Court addressed the meaning of the term “force” again, this time in the context of sexual assault. You’ll that case, In re. M.T.S., in Chapter Six, and have an opportunity then to think more about whether the concept of force is or should be defined uniformly across criminal law.
2. Between majority and dissent in Sein, who offers the more convincing interpretation of the state legislature’s intent with respect to this particular statute? Is it clear that Judges Clifford (for the majority) and Chief Judge Wilentz (dissenting) are trying to ascertain the legislature’s intent, as opposed to trying to vindicate their own instincts about whether purse snatchings should be criminalized as robberies?
3. Consider carefully the end of the dissent, where Chief Judge Wilentz says that his interpretation of the statute is “not limited to purses or women.” If that is true, why wouldn’t pickpocketing become robbery, according to the dissent?
4. Use robbery to practice your ability to analyze mental state requirements. What is the mens rea requirement of the New Jersey statute? (Remember, the absence of an explicit textual reference to mental states does not mean that a statute lacks a mens rea requirement!) Do you think robbery would be classified as a “specific intent” or “general intent” crime?
N.Y. Penal Law 160.00. Robbery; defined
Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:
1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or
2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.
The People of the State of New York
v.
Edward REID
The People of the State of New York
v.
Walter RIDDLES
Court of Appeals of New York
508 N.E.2d 661
Decided May 5, 1987
SIMONS, J.
The common issue presented by these two appeals is whether a good-faith claim of right, which negates larcenous intent in certain thefts, also negates the intent to commit robbery by a defendant who uses force to recover cash allegedly owed him. We hold that it does not….
I
Defendant Edward Reid was charged in a multicount indictment with felony murder, three counts of robbery in the first degree, one count of criminal possession of a weapon in the third degree and various other crimes. He was acquitted of the murder count but convicted of the robbery and possession counts. The additional charges were dismissed by the trial court.
The convictions stem from defendant’s forcible taking of money from three others. The evidence established that defendant and his stepbrother, Andre McLean, approached … three men … standing on a street corner in The Bronx. Defendant and McLean were holding pistols when defendant demanded that the three men hand over money “that belonged to him,” apparently referring to money owed him as the result of prior drug transactions. [Two men] gave defendant money but [a third, Donnie Peterson] responded that he had none and would have to go upstairs to his apartment to get some. As the men walked up the stairs, toward Peterson’s apartment, defendant “snatched” McLean’s pistol, placed it in his waistband and demanded that McLean turn over money he was holding for him. McLean handed defendant \$300. A moment later, he rushed at defendant, a “shot went off” striking McLean and defendant fled. McLean subsequently died from a single gunshot wound to his chest.
Defendant Walter Riddles was indicted for robbery in the second degree and assault in the second degree. He was convicted after a bench trial of robbery in the third degree for forcibly taking money from Genevieve Bellamy on November 10, 1982.
Bellamy and defendant both testified at trial, each providing different descriptions of events. Bellamy maintained that while she was waiting for a taxi at a street corner in The Bronx, defendant, whom she did not know, drove up to the curb and asked for directions. According to Bellamy, when she leaned into defendant’s automobile to help him, defendant grabbed her, forced her into the car and demanded money from her. Bellamy stated she did not have any, but defendant struck her in the face, searched her pockets, and, upon discovering \$50, took the money and ordered her out of the automobile.
Defendant disputed her story. He testified that he knew Bellamy prior to the incident and that she owed him \$25. He stated that … on the evening of November 10 … she offered to pay him \$15 toward her debt if he drove her downtown so she could pick up a package. Defendant maintained that he took Bellamy downtown, as she asked, but that she was unable to obtain her package so he drove her back uptown. Defendant testified that during the return trip, Bellamy again offered to pay him \$15 toward her debt, but upon seeing her counting a large sum of money, he took the full amount she owed him, \$25, and no more.
In pronouncing judgment, the court stated that it credited the portion of defendant’s testimony indicating that he had taken the money from Bellamy to satisfy a debt but the court held that because defendant used force he was nevertheless guilty of robbery.
II
A person “commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force.” The larceny statute, in turn, provides that an assertion that “property was appropriated under a claim of right made in good faith” is a defense to larceny (see Penal Law § 155.15). Since a good-faith claim of right is a defense to larceny, and because robbery is defined as forcible larceny, defendants contend that claim of right is also a defense to robbery. They concede the culpability of their forcible conduct, but maintain that because they acted under a claim of right to recover their own property, they were not guilty of robbery, but only some lesser crime, such as assault or unlawful possession of a weapon.
Defendants’ general contention is not without support. Several jurisdictions have held that one who acts under a claim of right lacks the intent to steal and should not be convicted of robbery. That logic is tenable when a person seeks to recover a specific chattel: it is less so when asserted under the circumstances presented in these two cases: in Reid to recover the proceeds of crime, and in Riddles, to recover cash to satisfy a debt.
We have not had occasion to address the issue but the Appellate Divisions [lower NY courts] to which it has been presented have uniformly ruled that claim of right is not a defense to robbery. Their determinations have been based upon the interpretation of the applicable statutes and a policy decision to discourage self-help and they are consistent with what appears to be the emerging trend of similar appellate court decisions from other jurisdictions. For similar reasons, we conclude that the claim of right defense is not available in these cases. We need not decide the quite different question of whether an individual who uses force to recover a specific chattel which he owns may be convicted of robbery. It should be noted, however, that because taking property “from an owner thereof” is an element of robbery, a person who recovers property which is his own (as compared to the fungible cash taken to satisfy a claimed debt in the cases before us) may not be guilty of robbery.
The claim of right defense is found in the larceny article of the Penal Law, which provides that a good-faith claim of right is a defense to trespassory larceny or embezzlement. The defense does not apply to all forms of larceny. For example, extortion is a form of larceny, but the Legislature, consistent with a prior decision of this court, has not authorized a claim of right defense to extortion. The exception is significant for extortion entails the threat of actual or potential force or some form of coercion. Thus, the inference may reasonably be drawn that in failing to authorize a claim of right defense for extortion in Penal Law § 155.15 (1), and by failing to incorporate it in article 160 of the statute, which governs robbery, the Legislature recognized that an accused should not be permitted to invoke it in crimes involving force. We assume that if the Legislature intended to excuse forcible taking, it would have said so.
Our decision also rests upon policy considerations against expanding the area of permissible self-help. Manifestly, a larceny, in which the accused reacquires property belonging to him without using force, differs from a robbery in which the defendant obtains money allegedly owed to him by threatening or using force. “The former is an instance of mistake, not subjected to penal sanctions because the threat to private property is not so serious as to warrant intervention by the criminal law. The latter is a species of self help and whether or not the exponent of force or threats is correct in estimating his rights, he is resorting to extra-judicial means in order to protect a property interest” (Note, A Rationale of the Law of Aggravated Theft, 54 Colum L Rev 84, 98 [1954]). Since such forcible conduct is not merely a transgression against property, but also entails the risk of physical or mental injury to individuals, it should be subjected to criminal sanctions. Consequently, we find the courts in both People v Reid and People v Riddles correctly denied defendants’ requests to assert claim of right defenses.
… We have considered defendant Reid’s remaining points and find them either unpreserved or without merit.
Accordingly, the orders of the Appellate Division should be affirmed.
Notes and questions on People v. Reid
1. Recall that in People v. Williams, the California case presented early in this chapter, the court relied on common law property crime definitions (including larceny) to interpret the state robbery statute. Here in Reid, the New York court takes a similar approach, perhaps with even better statutory authority: the New York statute at issue here explicitly refers to larceny to define the crime of robbery. That approach – understanding robbery as larceny + the use or threat of force – creates the legal question that arises in Reid: should a circumstance that provides a defense to larceny also provide a defense to the more serious crime of robbery?
2. To think through that question, it may help to put the use of force aside for a moment and focus solely on larceny. Why is a good faith claim of right a defense to the crime of larceny?
3. Do the considerations that make a good faith claim of right relevant to liability for larceny also apply in the robbery context? Why or why not?
4. In 2007, the former football star O.J. Simpson was arrested after he and five other men confronted sports memorabilia dealers in a Las Vegas Hotel and took items at gunpoint. Simpson later claimed that he was simply recovering commemorative items and awards that had been stolen from him. Would Simpson’s claim, if true, exonerate him from a charge of robbery under the analysis of State v. Reid? For the analysis of a Nevada court (applying a Nevada robbery statute), see Simpson v. State, 367 P.3d 819 (Nev. 2010).
Arson
Md. Crim. L. § 3-204. Reckless endangerment [as of 2001]
(a) A person may not recklessly:
(1) engage in conduct that creates a substantial risk of death or serious physical injury to another; or
(2) discharge a firearm from a motor vehicle in a manner that creates a substantial risk of death or serious physical injury to another.
Md. Crim. L. § 6-102. Arson [as of 2001]
(a) A person may not willfully and maliciously set fire to or burn:
(1) a dwelling; or
(2) a structure in or on which an individual who is not a participant is present.
Reginald T. HOLBROOK
v.
STATE of Maryland
Court of Appeals of Maryland
772 A.2d 1240
June 5, 2001
HARRELL, Judge.
Following a non-jury trial in the Circuit Court for Wicomico County, Reginald T. Holbrook (Petitioner) was convicted of first degree arson, eight counts of reckless endangerment, and making a threat of arson… We granted Petitioner’s writ of certiorari…
I.
… There is no significant dispute about the facts in this case. In 1998, Alisha Collins leased a residence at 230 Ohio Avenue in Salisbury, Maryland. Between April and May of that year, nine people lived there [including] Alisha Collins, … her aunt, DeKota Collins, … and, Mr. Holbrook, who was DeKota Collins’s boyfriend. Mr. Holbrook resided at the home for several months and contributed to the rent.
DeKota Collins was the representative payee for Mr. Holbrook’s social security payments. On May 1, 1998, Mr. Holbrook and DeKota Collins had an argument over his money during which he made a menacing gesture toward her with a screwdriver. Alisha Collins called the police. The responding officer told Mr. Holbrook that he would have to leave and not to return to the premises. The officer stayed while Mr. Holbrook removed all of his belongings. Alisha Collins testified at trial that Mr. Holbrook was “really mad.”
About an hour after leaving the premises, Mr. Holbrook returned and asked to speak to DeKota. She told him, “Reggie, I don’t want you no more. I just want you to leave me alone and don’t come back here no more.” Mr. Holbrook sat on the porch and cried. About one hour later, Alisha Collins and her husband left the premises with Mr. Holbrook. The three shared a cab ride, during which Mr. Holbrook repeatedly said “I’m going to get all of you.”
On May 6, 1998, Alisha Collins observed Mr. Holbrook walking back and forth across the street from her house. She testified that he said “I’ll burn this mother fucker up.” Over the objection of defense counsel, Alisha Collins testified that a week before Mr. Holbrook left the home, she overheard an argument between him and DeKota Collins during which Mr. Holbrook said “I’ll burn this mother fucker house down” and “I got people that can hurt you that live upstate.”
[Quoted from the lower court opinion:] On the evening of May 7, 1998, Mr. Holbrook came to the door of the home and asked to see DeKota Collins. Alisha Collins lied and said that she was not home. Mr. Holbrook remained outside of the house for about 45 minutes calling DeKota’s name… That night, Alisha Collins fell asleep on the living room sofa. Sometime after midnight, she awoke to the smell of smoke. She awoke her husband, who went out the back door and discovered a pillow burning on the back porch. All of the occupants safely evacuated the house.
[Also from lower court opinion:] Kevin Ward, a firefighter with the Salisbury Fire Department, testified that the flames from the burning pillow were about 6 to 12 inches high when he arrived, and that there were char marks on the threshold to the rear door and smoke in the basement. Alisha Collins testified that she saw Mr. Holbrook across the street 10 to 15 minutes after the fire was discovered. She told the police that Mr. Holbrook started the fire. Mr. Holbrook was questioned by the police and by the fire marshal. He was subsequently arrested and charged with arson, reckless endangerment, and threats of arson.
On 29 April 1999, Petitioner was tried in a bench trial in the Circuit Court for Wicomico County. The court found Petitioner guilty of one count of first degree arson, eight counts of reckless endangerment [one count for each of the eight persons present in the house at the time of the fire], and one count of making a threat of arson. [The threat charge is not before this Court.] At the 28 June 1999 sentencing proceeding, defense counsel requested that the trial judge merge the reckless endangerment convictions into the first degree arson conviction; the court declined. Petitioner received a 30 year sentence for the arson conviction, with all but 22 ½ years suspended. For the first reckless endangerment conviction, Petitioner was sentenced to five years, to run consecutive to the arson sentence. For each of the remaining seven convictions of reckless endangerment, Petitioner received five years, to run consecutive to the arson sentence, but concurrent to the first reckless endangerment sentence, as well as to each other.
… Petitioner contends that the Court of Special Appeals erred in holding that a conviction and consecutive sentence for reckless endangerment did not merge into the conviction and sentence for first degree arson, when the reckless endangerment was the creation of risk of harm to persons inside a dwelling where Petitioner set a fire on a porch, and the first degree arson was the setting of the fire at the dwelling.
II.
Petitioner argues that, under either the required evidence test [for violations of the Double Jeopardy Clause] or the rule of lenity, or for reasons of “fundamental fairness,” the reckless endangerment convictions and sentences should have merged into the arson conviction and sentence. Concluding that arson and reckless endangerment are separate and distinct crimes, we disagree with Petitioner’s assertion. For reasons we shall explain, we hold that, under the circumstances of this case, the Court of Special Appeals did not err when it affirmed the Circuit Court’s refusal to merge reckless endangerment with arson.
III.
We reiterate that “the cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature.” When striving to determine the legislative intent of any statute, we first examine the plain language of the statute.
Ordinarily, we afford the words of the statute their natural and usual meaning in the context of the Legislature’s purpose and objective in enacting the statute. Moreover, we should avoid “resorting to subtle or forced interpretations for the purpose of extending or limiting [the statute’s] operation.”
A. Common Law and Legislative History
1. Reckless Endangerment
Reckless endangerment is purely a statutory crime. Modeled after § 211.2 of the Model Penal Code and first enacted in Maryland [in] 1989, reckless endangerment was codified originally … under the subtitle destroying, Injuring, etc., Property Maliciously. Effective 1 October 1996, the Legislature repealed [the first reckless endangerment statute] … enacting in its stead Md. Code Art. 27, § 12A–2 under the subtitle of assault. This statute presently provides, in pertinent part:
(a) Creation of substantial risk of death or serious physical injury; penalties.
—(1) Any person who recklessly engages in conduct that creates a substantial risk of death or serious physical injury to another person is guilty of the misdemeanor of reckless endangerment and on conviction is subject to a fine of not more than \$5,000 or imprisonment for not more than 5 years or both.
* * * *
(c) More than one person endangered.—If more than one person is endangered by the conduct of the defendant, a separate charge may be brought for each person endangered.
… In two recent cases, we have discussed the legislative underpinnings of the reckless endangerment statute, as well as the elements of the crime. In State v. Pagotto (2000), we noted that
[t]his statute is aimed at deterring the commission of potentially harmful conduct before an injury or death occurs. The statute was enacted “to punish, as criminal, reckless conduct which created a substantial risk of death or serious physical injury to another person. It is the reckless conduct and not the harm caused by the conduct, if any, which the statute was intended to criminalize.” Thus, the focus is on the conduct of the accused.
… In Jones v. State (2000), we concluded that
[t]he elements of a prima facie case of reckless endangerment are: 1) that the defendant engaged in conduct that created a substantial risk of death or serious physical injury to another; 2) that a reasonable person would not have engaged in that conduct; and 3) that the defendant acted recklessly.
Noting that most Maryland cases addressing these elements discuss the requisite mental state to sustain a reckless endangerment conviction, both Pagotto and Jones cite to Minor v. State (1992), where the Court adopted and applied an objective mens rea:
[G]uilt under the statute does not depend upon whether the accused intended that his reckless conduct create a substantial risk of death or serious injury to another. The test is whether the appellant’s misconduct, viewed objectively, was so reckless as to constitute a gross departure from the standard of conduct that a law-abiding person would observe, and thereby create the substantial risk that the statute was designed to punish.
2. Arson
At common law, arson was defined as the malicious burning of the dwelling of another. Moreover, “at common law, arson [was] an offense against the security of habitation or occupancy, rather than against ownership or property.”
To be convicted of common law arson, the State had to establish four elements: (1) that the building burned was a dwelling house or outbuilding within the curtilage; (2) that the building burned was occupied by another; (3) that the building was actually burned, as mere scorching would not suffice; and, (4) that the accused’s mens rea was willful and malicious.
…The present day arson statute, under which Petitioner was convicted, defines arson as “willfully and maliciously set[ting] fire to or burn[ing] a dwelling or occupied structure, whether the property of the person or another.” Md.Code Art. 27, § 6(a). “Dwelling,” the term applicable in this case, is defined as “a structure, regardless of whether an individual is actually present, any portion of which has been adapted for overnight accommodation of individuals.” Md.Code Art. 27, § 5(b). Additionally, “maliciously” is defined as “ an act done with intent to harm a person or property,” Md.Code Art. 27, § 5(c), while “willfully” is defined as “an act which is done intentionally, knowingly, and purposefully.” Md.Code. Art. 27, § 5(f).
IV.
A. Required Evidence Test
Under the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution, the State can neither hold multiple trials nor punish a defendant multiple times for the same offense. Where a legislature, however, specifically authorizes cumulative punishment under two statutes irrespective of whether they prohibit the same conduct, such punishment may be imposed under the statutes in a single trial. Jones (“[T]he Double Jeopardy Clause does no more than prevent the sentencing court from proscribing greater punishment than the legislature intended.”)).
In the present case, Petitioner received multiple punishments for the same conduct under two statutes in a single trial. As the Court of Special Appeals noted correctly, under Maryland common law, the required evidence test is the appropriate “test for determining whether the different statutory or common law offenses, growing out of the same transaction, are to merge and be treated as the same offense for double jeopardy purposes.” [In a footnote, the court observed that “the required evidence test is commonly referred to as the Blockburger test, see Blockburger v. United States (1932),” and is also sometimes called “the same evidence test,” the “elements” test, or the “same elements” test.] The required evidence test
is that which is minimally necessary to secure a conviction for each … offense. If each offense requires proof of a fact that the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy [and merger] purposes, even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy [and merger] purposes.
As a matter of course, merger occurs when two offenses are based on the same act or acts and are deemed to be the same under the required evidence test; however, “the Legislature may punish certain conduct more severely if particular aggravating circumstances are present … by imposing punishment under two statutory offenses.”
In Petitioner’s view, “every first degree arson necessarily involve[s] a reckless endangerment,” but not vice versa. This assertion, however, is anomalous in light of the language of the statutes. Instead, we agree with the State’s and the Court of Special Appeal’s positions that arson and reckless endangerment do not merge under the required evidence test because each offense has an element not present in the other.
As discussed supra, the offense of arson requires a defendant to act “willfully and maliciously,” while the reckless endangerment offense requires proof that the defendant acted “so reckless[ly] as to constitute a gross departure from the standard of conduct that a law-abiding person would observe.” Petitioner argues that these mens reae are one and the same… While this reasoning may have been true [under prior versions of our statutes, it is not true today]. Section 5 of Art. 27, which provides the definitions for the terms used within the arson statute, defines “maliciously” as “an act done with intent to harm a person or property,” and “willfully” as “an act which is done intentionally, knowingly, and purposefully.” Examining the plain language used to define “maliciously” and “wilfully,” we conclude that the Legislature intended for arson to be a specific intent crime.
Conversely, the Legislature clearly intended for reckless endangerment to be a general intent crime, one whose mens rea requirement is the conscious disregard of the risks and indifference to the consequences to other persons…
We distinguish further the elements of these offenses, for, in contrast with reckless endangerment, arson clearly is defined as a crime against habitation. To reiterate, Art. 27, § 6 provides that “[a] person may not wilfully and maliciously set fire to or burn a dwelling or occupied structure, whether the property of the person or another.” In the present case, the record reflects that, the day before the incident, Petitioner threatened to “burn this mother fucker up” and to “burn this mother fucker house down.” Applying the statute to this evidence, the Circuit Court convicted Petitioner of wilfully and maliciously setting fire to or burning the Collinses’ dwelling. Because dwelling “means a structure, regardless or whether an individual is actually present, any portion of which has been adapted for overnight accommodation of individuals” (emphasis added), we conclude that, in keeping with its common law roots, first degree arson is a crime against habitation, not persons or property. In contrast, reckless endangerment, in keeping with its statutory construction, is a crime against persons, not habitation or property. This is indicative, though not dispositive, of a legislative intent that the crimes may be punished separately. This bears on our later analysis of the rule of lenity with greater weight.
…We reject Petitioner’s argument that, under the required evidence test, the same evidence necessary to convict on the arson offense would always be sufficient to establish the reckless endangerment offense. Accordingly, Petitioner was not convicted twice for the same offense in violation of the Double Jeopardy Clause of the United States Constitution.
B. The Rule of Lenity
When, as in the present case, two offenses do not merge under the required evidence test, we nonetheless may consider, as a principle of statutory construction, the rule of lenity, which “provides that doubt or ambiguity as to whether the legislature intended that there be multiple punishments for the same act or transaction will be resolved against turning a single transaction into multiple offenses.”
… We believe that the Legislature moved the offense of reckless endangerment to its current subtitle in an effort to avoid the very guesswork that Petitioner encourages us to engage in today: whether reckless endangerment could be a crime against property or habitation as well as against persons. We note that, like attempt to commit a crime, reckless endangerment is an inchoate crime, for it “is intended to deal with the situation in which a victim is put at substantial risk of death or serious bodily harm but may, through a stroke of good fortune, be spared the consummated harm itself.” In this case, Petitioner was convicted of recklessly endangering the Collins family by setting fire to a pillow on their porch even though, through a stroke of good fortune, he caused no injury to them. But what if Petitioner had intended to harm the Collinses, and he in fact did cause such harm? What if his crime was no longer inchoate, but complete? It is our view that, even if Petitioner’s intent was not general, but specific as to harming the Collins family, and even if the act of burning the pillow had caused an injury to one or more of the Collinses, the completion of the mens rea and the actus reus would not have ripened into the offense of arson, but rather into the offense of battery, or worse. It, however, would not have ripened under the rule of lenity into the offense of arson.
We believe that there is clear legislative intent that persons convicted of arson also may be convicted of reckless endangerment. It is not logical to assume that the Legislature intended that reckless endangerment would merge for purposes of sentencing with arson. Rather, the General Assembly intended arson and reckless endangerment to be separate offenses subject to multiple punishments. Because there is no doubt or ambiguity as to whether the Legislature intended that there be multiple punishments for Petitioner’s act, the punishments are permitted and the statutory offenses do not merge for sentencing purposes.
Notes and questions on Holbrook v. State
1. Holbrook involves a multiple-charges situation somewhat similar to State v. Begaye, discussed earlier in this chapter. Recall that in Begaye, the defendant was charged with two separate offenses, burglary and breaking and entering, for the same conduct. The Begaye court rejected the defendant’s argument that these separate convictions violated his right to be free from double jeopardy. Here in Holbrook, the defendant argued that he could not be convicted of both arson and reckless endangerment for the same conduct. Does the Maryland court in Holbrook use the same test to assess the double jeopardy claim that the New Mexico court used in Begaye?
2. Double jeopardy claims are just one of many contexts in which it is important to be able to identify the separate elements of an offense, including any mens rea requirement. If you were to list the separate elements of the Maryland reckless endangerment offense, what elements would you include? What is the mens rea requirement of that statute?
3. The Holbrook court says that arson is an offense against habitation, rather than an offense against property. What might be the difference?
4. Some common law courts held that it was impossible to commit arson against one’s own property. As with burglary, this principle has changed with modern criminal statutes. Many states now explicitly define arson to include intentional destruction by fire of one’s own property. And some states have a specific offense of burning one’s own property in order to collect insurance proceeds.
5. Is arson a “violent” crime? Again, we will discuss the classification of crimes as violent, and consider “force” as an element of criminal offenses, in more detail in the next chapter. But it is worth noting now that one approach to “violent crime” defines the category to include offenses that involve “the use of force against the person or property of another. Under that definition, arson against someone else’s property could be a violent crime, but arson against one’s own property would not be violent. See, e.g., United States v. Wilder, 834 F. App’x 782, 784 (4th Cir. 2020).
6. The Maryland arson statute is fairly typical in requiring “willful and malicious” intent; many other arson statutes use similar mens rea language. The terms “malice” and “malicious” appear frequently in criminal statutes, but there is no single uniform definition of these terms. (Nor do courts always agree what “willful” means.) Chapter Six provides greater detail of the term “malice” in the specific context of homicide law. As the Holbrook court notes, the Maryland arson statute defines “maliciously” to mean “with intent to harm a person or property.” Given this definition, the court categorizes arson as a “specific intent crime” and thus distinguishes it from reckless endangerment (a “general intent crime”), allowing the defendant to be convicted of both offenses.
7. In California, arson is similarly defined with a mens rea of “willfully and maliciously.” “A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property.” Cal. Penal Code § 451. But the California Supreme Court has interpreted this language to create a “general intent” crime that requires only that the defendant intend to engage in the conduct that starts the fire. Under California law, it is not necessary to show the defendant intended to cause any harm, or even intended to start a fire, in order to convict a defendant of arson. The California court reached this conclusion in In re. V.V., 252 P.3d 979 (2011), which involved two minors who had lit a firecracker on a hill in Pasadena. The firecracker exploded and caused a brush fire. The Supreme Court found sufficient evidence of “willful and malicious” intent, emphasizing that the minors had deliberately set off the firecracker, and that a reasonable person would realize that the firecracker could start a fire. It did not matter, the court said, if these defendants did not intend to set a fire, or if these defendants were not actually aware of the risk that the firecracker would start a fire.
V.V. and J.H. were not required to know or be subjectively aware that the fire would be the probable consequence of their acts. … A defendant may be guilty of arson if he or she acts with awareness of facts that would lead a reasonable person to realize that the direct, natural, and highly probable consequence of igniting and throwing a firecracker into dry brush would be the burning of the hillside….
Although V.V. and J.H. did not intend to set the hillside on fire, they knew that their intentional acts created a fire hazard. J.H. told the police he attempted to throw the firecracker onto a concrete area on the hillside, while V.V. said they wanted to throw the firecracker onto a green area on the hillside.
In re V.V., 252 P.3d at 985.
End of Chapter Review
Check Your Understanding (5-3)
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Cumulative Review
Check Your Understanding (5-4)
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The original version of this chapter contained H5P content. You may want to remove or replace this element.
1. [Fn. 3 of original opinion]. As to the definition of “possession” the judge instructed the jury as follows:
• The word “possession” includes actual as well as constructive possession, and also sole as well as joint possession.
• A person who has direct physical control of something on or around his person is in actual possession of it.
• A person who is not in actual possession, but who has knowledge of the presence of something and has the authority or right to maintain control of it either alone or together with someone else, is in constructive possession of it.
• If one person alone has possession of something, possession is sole. If two or more persons share possession, possession is joint.
I Iowa Criminal Jury Instructions no. 200.47. As we address below, these instructions are more helpful in controlled substance cases. Jury instructions on the definition of “possession” and “control” under § 714.1 should be based upon the concepts articulated in the Model Penal Code. | textbooks/biz/Criminal_Law/Criminal_Law%3A_An_Integrated_Approach_(Ristroph)/1.05%3A_Property_Crimes.txt |
Introduction
In this chapter, we consider offenses that involve the threatened or actual use of force against another person, or the infliction of some kind of bodily injury. This category of offenses is often labeled “Crimes against the person,” a term that emerged at common law but is now replicated in many contemporary penal codes. Crimes against the person are crimes against individual victims, but that is not the only factor that makes them “against the person.” In the typical usage, “against the person” means “against the body”: crimes against the person are crimes that involve injuries or threats to the physical body of a victim. Some courts and commentators equate the category “crimes against the person” with the phrase “violent crime,” and in this chapter we will also explore the classification of certain offenses as “violent.” We will focus on assault, sexual assault, and homicide in this chapter, but many other offenses – including robbery and arson, both discussed in Chapter Five – have been classified as violent on at least some occasions. As you read, look for both patterns of commonality and points of divergence in the ways that different places, at different times, have classified conduct as violent, or violence as criminal.
The offenses discussed in this chapter are important for several reasons. To many law students and lawyers, and indeed to many non-specialists, crimes such as homicide or sexual assault represent the “core” of criminal law, the type of conduct that most warrants criminalization. In an era in which American criminal law is subject to extensive criticism and many commentators have argued for abolition of much of the criminal legal system, crimes against the person may pose a particular challenge. Even if some types of harmful or unpleasant conduct are best addressed through non-criminal legal measures, the anti-abolitionist might argue, murder and rape are acts whose very labels invoke criminal law. As you consider how society should best respond to acts of violence that are presently punished as homicides or assaults, you should be attentive to variations in the legal definitions of those terms and discretion in their application.
By the end of this chapter, you should understand the typical components of assault, sexual assault, and homicide, and you should be familiar with interpretive questions that arise frequently in relation to these offenses. The offenses in this chapter will allow you to develop further your understanding of mens rea, or mental states, since the specific mental state that accompanies the infliction of an injury often makes the difference between one type of assault or another, or one type of homicide versus another. And as in every chapter, you should use the materials here to expand and deepen your understanding of criminal law in practice, with specific focus on the interaction of criminalization, enforcement, and adjudication decisions.
This chapter also introduces a few important topics that have not yet been addressed in depth, but that are relevant even beyond the category of crimes against the person: omission liability, causation, and affirmative defenses. Omission liability, or the imposition of criminal liability for failing to act rather than for acting in a prohibited way, was addressed briefly in Chapter Two, but here we’ll consider it in more detail. Principles of causation are relevant to many criminal offenses, but they arise especially often in the types of crimes addressed in this chapter. And finally, affirmative defenses are a special type of defense argument that we will consider in this chapter (and again later, in Chapter Ten).
We begin our study of crimes against the person with assault. Then we move on to homicide, and finally, at the end of the chapter, we consider rape or sexual assault. As is probably already clear, the factual backgrounds of the cases in this chapter are often disturbing. Please be prepared to encounter sensitive and potentially unsettling material.
Assault
Minnesota Stat. § 609.02
Subd. 10. Assault. “Assault” is:
(1) an act done with intent to cause fear in another of immediate bodily harm or death; or
(2) the intentional infliction of or attempt to inflict bodily harm upon another.
§ 609.221. Assault in the first degree
Subd. 1. Great bodily harm. Whoever assaults another and inflicts great bodily harm may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than \$30,000, or both.
STATE of Minnesota
v.
Alie Christine Theodore DORN
Supreme Court of Minnesota
887 N.W.2d 826
December 7, 2016
MCKEIG, Justice.
Appellant Alie Dorn [was convicted a]fter a bench trial … of first-degree assault under Minn. Stat. 609.221, subd. 1 (2014) (great bodily harm)…. Dorn maintains that the evidence was insufficient to convict her of first-degree assault because (1) she did not intentionally harm [the victim], and (2) her actions did not “inflict” bodily injury, which Dorn contends requires direct causation. We affirm.
I.
On July 20, 2013, appellant Alie Dorn, then 22 years old, attended a large outdoor party near Thief River Falls in Marshall County. D.E., then 19 years old, also attended. Most people at the party, including Dorn and D.E., were drinking alcohol. Dorn and D.E. did not know each other, but at approximately 1:00 a.m., they were standing about 5 feet away from each other next to a large bonfire. The bonfire was made of wooden pallets… and by 1:00 a.m. it had burned down to embers.
Within earshot of Dorn, D.E. told his friend that Dorn looked like a drug dealer. Dorn overheard and replied, “What?” D.E. repeated that Dorn looked like a drug dealer. Dorn reacted by pushing D.E. in the chest using two hands. D.E. lost his balance and took a step or two backwards toward the fire. Dorn asserts that D.E. then “came at” her, failing to heed the “fair warning” of her first push, at which point she “shoved” D.E. in the chest a second time, again using two hands. D.E. contests Dorn’s allegation that he came at her, asserting that he never regained his balance before Dorn shoved him a second time. Both agree that D.E. then fell and landed on his right side in the burning embers, sustaining significant burn injuries.
… Dorn told police that she “shoved” D.E. to get him out of her personal space because he was “in [her] face,” “saying a bunch of stuff,” “calling [her] a drug dealer,” and “standing close” to her. She said she did not intend to push D.E. into the fire. [D.E. did not touch or attempt to touch Dorn, and Dorn has not appealed the district court’s finding that she did not act in self-defense.]
Following a bench trial, the district court convicted Dorn of first-degree assault… The court of appeals affirmed…. We granted Dorn’s petition for review.
II.
[First-degree assault-harm requires “great bodily harm,” which includes “bodily injury … which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ.” Dorn does not dispute that D.E.’s injuries constituted great bodily harm.] … [But] Dorn argues that the evidence was insufficient to satisfy the definition of assault-harm … because she did not intentionally harm D.E., and her actions did not directly cause D.E.’s injuries. Dorn’s sufficiency challenge requires us to address the mens rea, actus reus, and causation required for assault-harm….
The application of the law to Dorn’s conduct requires an evaluation of the sufficiency of the evidence. We will not disturb the verdict if the factfinder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded that the defendant was guilty…. We “view the evidence in the light most favorable to the verdict and assume that the factfinder disbelieved any testimony conflicting with that verdict.” This standard applies to both bench trials and jury trials.
A.
We first consider whether Dorn possessed the mens rea required for assault-harm. “Mens rea is the element of a crime that requires ‘the defendant know the facts that make [her] conduct illegal.’” Without this mens rea element, a statute imposes strict criminal liability. Strict-liability statutes are “generally disfavored,” and therefore, “legislative intent to impose strict criminal liability must be clear.”
In State v. Fleck (Minn. 2012), we concluded that assault-harm requires only general intent. General intent is satisfied when a defendant “intentionally engag[ed] in the prohibited conduct.” In other words, “a general-intent crime only requires proof that ‘the defendant intended to do the physical act forbidden, without proof that [she] meant to or knew that [she] would violate the law or cause a particular result.’ ” Further, the defendant must do the act of her own volition or free will.
For assault-harm, “[t]he forbidden conduct is a physical act, which results in bodily harm upon another.” Specifically, assault-harm requires “only an intent to do the prohibited physical act of committing a battery. The State must therefore prove that “the blows to complainant were not accidental but were intentionally inflicted.”
…[I]n proving the mens rea element of general-intent crimes, the State need not show that the defendant “meant to or knew that [she] would violate the law or cause a particular result.” [To commit assault-harm,] a defendant need only intend “to do the prohibited physical act of committing a battery.” Nothing in [our precedents] suggests that the defendant must intend to commit a battery; rather, the defendant need only intend to commit an act that constitutes a battery.
This standard does not impose strict liability because it requires the defendant to “know the facts that make [her] conduct illegal.” Specifically, for assault-harm, a defendant must intend the act that makes her conduct a battery; in other words, she must intentionally apply force to another person without his consent. See II.B., infra. If, instead, we required the intent to commit a battery, a defendant would not only need to know the facts that make her conduct illegal, but would also need to know that her conduct breaks the law. It is well settled, however, that a mistake of law is generally not a defense to a general-intent crime….
The evidence is sufficient to establish that Dorn possessed the mens rea required for assault-harm. Indeed, Dorn admits that she “shoved” D.E. to get him out of her personal space. She does not contend that she pushed D.E. accidentally or involuntarily. Dorn may not have understood that her conduct constituted an unlawful battery, or that it would result in bodily harm. Dorn did, however, intentionally apply force to another person, which satisfied the mens rea element of assault-harm.
B.
Next, we consider whether Dorn’s conduct constituted a battery, and therefore satisfied the actus reus required for assault-harm. The court of appeals determined that Dorn’s conduct constituted a battery because she applied physical force to D.E. In Minnesota, the separate crime of battery has been incorporated into the definition of assault. At common law, criminal battery was “the intentional application of unlawful force against the person of another.” “Force” was “satisfied by even the slightest offensive touching.”
… Dorn correctly points out that the language of the assault-harm definition does not include the word “battery.” Rather, the language requires the “infliction” of bodily harm. “Inflict” means “to lay (a blow) on” or “cause (something damaging or painful) to be endured.” The definitions of “battery” and “inflict” are therefore similar, requiring the State to show that the defendant engaged in nonconsensual physical contact.
The evidence is sufficient to show that Dorn’s conduct constituted a battery or “infliction” of harm. Dorn pushed D.E. twice in the chest with two hands, hard enough to cause him to lose his balance. Dorn admitted that her actions were not consensual or friendly. Rather, Dorn “shoved” D.E. to get him out of her personal space because he was “in [her] face,” “saying a bunch of stuff,” “calling [her] a drug dealer,” and “standing close” to her. She characterized her first push as “fair warning.” At that point, Dorn had committed a battery because she intentionally applied nonconsensual force against D.E. She committed a second battery when she shoved D.E. again. Both of these actions also “inflicted” harm because she imposed something unpleasant, “a blow.” As such, Dorn’s conduct satisfied the actus reus element of assault-harm.
C.
Finally, we consider whether Dorn’s conduct was the legal cause of D.E.’s injuries. The Legislature used the word “cause” in the assault-fear provision, but chose the word “infliction” for the assault-harm provision. Dorn argues that “inflict” is a stricter standard than “cause” and requires direct, not just proximate or “substantial factor,” causation. SeeState v. Gatson (Minn. 2011) (explaining that under a homicide statute in which the word “cause” is used, the State need only prove that the defendant’s acts were a “ ‘substantial causal factor’ leading to the death”); see alsoState v. Olson (Minn. 1989) (explaining that a defendant may rebut substantial causation by establishing that “intervening conduct [was] the sole cause of the end result”).
Dorn contends that she did not inflict bodily harm because her pushes did not harm D.E. directly; rather, D.E. was injured only because he tripped over debris and stumbled into the fire. The district court did not make a finding as to whether D.E. tripped over debris, concluding that this determination was not essential because “[D.E.]’s movements were initiated by [Dorn]’s actions.” The court of appeals held that the same “substantial causal factor” standard that applies to “cause” also applies to “infliction,” and that Dorn failed to identify a genuine superseding cause under this standard.
…Assuming without deciding that an “infliction” requires direct causation as Dorn argues, the evidence is sufficient to show that Dorn directly caused D.E.’s bodily harm. Even if D.E. stumbled on debris as he fell, Dorn pushed D.E. hard enough to cause him to lose his balance within a few feet of hot embers, and D.E. fell into the fire within moments of Dorn’s push. The causation standard for assault-harm is therefore satisfied, even under Dorn’s narrower proposed interpretation.
Thus, the evidence is sufficient to sustain Dorn’s conviction for first-degree assault….
Affirmed.
Notes and questions on State v. Dorn
1. At common law, the crime of battery was an intentional and offensive (unwanted) use of physical force against another person; the crime required actual physical contact. Assault was usually defined as an attempted battery – an effort to use offensive force against someone else, but not necessarily a successful effort. Assault did not require actual touching. As states codified their criminal laws, many eliminated this distinction between assault and battery and instead adopted a broadly defined assault offense like the one you see in Dorn, which encompasses both threats to use force and actual applications of force. The threat prong of assault is often defined, again like the Minnesota statute, as acting with intent to put another person in fear of death or immediate bodily harm.
2. The statutory approach described above means that “assault” now covers a huge range of conduct, from an angry look and a raised fist all the way to a brutal or even deadly physical attack. When we think in terms of threatening conduct rather than actual physical contact, many if not most of us have been victims of assault at one point or another. Thinking again of threatening conduct, perhaps many of us have also committed the offense. Jurisdictions frequently subdivide assault into narrower categories, perhaps using degrees (first-degree assault, second-degree assault, etc.) or distinguishing between “simple assault” and “aggravated assault.” For example, Georgia defines simple assault as the attempt to inflict a violent injury or the placing of another person in fear of injury. Aggravated assault occurs when an otherwise simple assault is accompanied by an intent to murder, rape, or rob, or when the defendant uses a deadly weapon, or when the defendant discharges a firearm from a motor vehicle. Note that in Georgia, neither simple nor aggravated assault requires actual physical contact with a victim or actual injury. See Ga. Code Ann. §§ 16-5-20; 16-5-21. The federal Bureau of Justice Statistics (BJS) collects data on crime and criminal prosecutions nationwide, and it uses generic definitions of crimes to create some consistency notwithstanding variations in state statutes. BJS defines “simple assault” as “an unlawful physical attack or threat of attack,” and “aggravated assault” as “an attack or attempted attack with a weapon, regardless of whether injury occurred, and an attack without a weapon when a serious injury results.” See https://bjs.ojp.gov/topics/violent-crime. Notice that BJS classifies both aggravated and simple assaults as “violent crime.” Some courts have taken a narrower approach and held that a simple assault, such as a threat of harm that does not involve a weapon or an actual injury, is not a violent crime.
3. Among the offenses that are labeled as violent, assault tends to be the most frequently charged. It is not a direct source of a large portion of prison sentences, since assault convictions are frequently punished with non-custodial sentences or sentences in jail rather than prison. (“Jail” facilities are usually designed for short-term confinement for persons awaiting trial or sentenced to a year or less of custody; prisons are designed for longer term confinement for persons with sentences of more than one year in custody.). But assault convictions are a significant source of America’s “violent crime” rates, and assault convictions contribute indirectly to mass incarceration in the following way: Many jurisdictions impose much longer prison sentences on defendants with prior convictions for violent crime. Thus, a person convicted of assault who is later charged with another offense is more likely to serve a lengthy prison sentence.
4. For serious forms of assault that require an actual injury, the issue of causation becomes important. This issue is also important in many homicide cases, since a homicide conviction requires proof that the defendant caused the victim’s death. We’ll explore causation principles in more detail in the homicide section of this chapter, but use State v. Dorn to begin identifying the terminology and basic ideas. How did Alie Dorn support her claim that she was not the cause of the victim’s burn injuries? Why did the court reject her argument?
5. The Dorn court characterizes assault-harm as a “general intent” crime, which should bring to mind the discussion of “general intent” and “specific intent” offenses in Chapter Five. What is the mens rea of assault-harm, according to the court? How does the court’s description of the required mental state differ from the mental state requirement that the defense would adopt?
Colorado Rev. Stat. § 18-3-203
(1) A person commits the crime of assault in the second degree if:
… (b) With intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon; or
(c) With intent to prevent one whom he or she knows, or should know, to be a peace officer, firefighter, emergency medical care provider, or emergency medical service provider from performing a lawful duty, he or she intentionally causes bodily injury to any person; or
(c.5) With intent to prevent one whom he or she knows, or should know, to be a peace officer, firefighter, or emergency medical service provider from performing a lawful duty, he or she intentionally causes serious bodily injury to any person; or
(d) He recklessly causes serious bodily injury to another person by means of a deadly weapon; or…
(i) With the intent to cause bodily injury, he or she applies sufficient pressure to impede or restrict the breathing or circulation of the blood of another person by applying such pressure to the neck or by blocking the nose or mouth of the other person and thereby causes bodily injury.
The PEOPLE of the state of Colorado, Petitioner
v.
Dearies Deshonne Austin LEE, Respondent
Supreme Court of Colorado
476 P.3d 351
November 23, 2020
JUSTICE GABRIEL delivered the Opinion of the Court.
This case requires us to determine whether, under prevailing Colorado equal protection principles, a defendant may be charged with second degree assault based on conduct involving strangulation under both the deadly weapon subsection of the second degree assault statute, and the strangulation subsection of that same statute.…
I. Facts and Procedural History
[Dearies Deshonne Austin] Lee had been together with the alleged victim, T.M., for about two years, and the two had a child but were separated at the time of the incident in question. According to T.M., Lee came to her apartment to pick up their child and demanded that T.M. gather the child’s belongings. Lee allegedly became frustrated that T.M. was not moving fast enough, and he became violent, ultimately grabbing T.M. by the neck and pushing her onto her bed. According to T.M., Lee continued to apply pressure to her neck until she lost consciousness.
T.M. subsequently regained consciousness and went into the living room to get her daughter. There, Lee allegedly confronted her again and, according to T.M., pushed her onto the couch and again began to strangle her, causing her to lose consciousness a second time.
Based on these allegations, the People charged Lee with, among other things, two counts of second degree assault under the strangulation subsection of the applicable statute, 18-3-203(1)(i). Eight months later, however, the People moved to add two additional counts of second degree assault under the deadly weapon subsection, 18-3-203(1)(b), asserting that Lee had used his hands as a deadly weapon. The trial court granted this motion.
Thereafter, Lee moved to dismiss the added counts, arguing, among other things, that those counts, as charged, violated his right to equal protection under the Colorado Constitution. The trial court held a hearing on Lee’s motion and ultimately granted that motion, dismissing the added counts on equal protection grounds. [The court of appeals affirmed.] … The People then petitioned this court for certiorari review, and we granted their petition…
II.B. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” “Although the Colorado Constitution contains no equal protection clause, we have construed the due process clause of the Colorado Constitution to imply a similar guarantee.” Dean v. People, 366 P.3d 593 (2016). “Equal protection of the laws assures the like treatment of all persons who are similarly situated.”
In the criminal law context, the United States Supreme Court has concluded that “where a defendant’s conduct violates more than one criminal statute, the government’s choice to prosecute under the statute with the harsher penalty does not violate federal equal protection, absent evidence of selective enforcement based on a prohibited standard such as race, religion, or other arbitrary classification.” This court, however, has yet to adopt the federal equal protection standard, the People did not ask us to do so in this case, and thus whether we should adopt the federal standard is not now before us. To the contrary, the parties appear to agree on the applicable principles of Colorado law, and we therefore turn to those principles.
We have long held, in contrast with the above-noted federal precedent, that “Colorado’s guarantee of equal protection is violated where two criminal statutes proscribe identical conduct, yet one punishes that conduct more harshly.” [See United States v. Batchelder (1979).] Along the same lines, we have said that “separate statutes proscribing with different penalties what ostensibly might be different acts, but offering no intelligent standard for distinguishing the proscribed conduct, run afoul of equal protection under state constitutional doctrine.” Accordingly, we have opined that to overcome an equal protection challenge, “a person of average intelligence” must be able to distinguish the conduct proscribed by one offense from the conduct proscribed by another. Moreover, the distinction between the two offenses must be “sufficiently pragmatic” to “permit an intelligent and uniform application of the law.” …
C. Application
Turning, then, to the facts of this case, we start by examining the statutory language of the two provisions at issue.
[The court quoted the statutory definition of second degree assault-strangulation, reprinted above.] Second degree assault-strangulation is a class four felony and an extraordinary risk crime, subject to a potential prison sentence of two to eight years.
A person commits the crime of second degree assault-bodily injury with a deadly weapon if, “[w]ith intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon.” § 18-3-203(1)(b). A deadly weapon, in turn, is defined as “(I) A firearm, whether loaded or unloaded; or (II) A knife, bludgeon, or any other weapon, device, instrument, material, or substance, whether animate or inanimate, that, in the manner it is used or intended to be used, is capable of producing death or serious bodily injury.” § 18-1-901(3)(e). In accordance with this definition, we have opined that hands may be deadly weapons if in the manner they are used, they are capable of producing death or serious bodily injury…. Second degree assault-bodily injury with a deadly weapon, like second degree assault-strangulation, is a class four felony, but because it is also a per se crime of violence, it subjects a defendant to a potential prison sentence of five to sixteen years.
…[Lee] contends that applying [the assault with deadly weapon] provision to an act of strangulation violates prevailing Colorado equal protection principles. To decide this issue, we must determine whether subsections 18-3-203(1)(b) and (1)(i) proscribe identical conduct with one of these subsections punishing that conduct more harshly than the other. The parties do not appear to dispute that the penalties under these subsections differ. Accordingly, we must decide whether these provisions proscribe identical conduct or, as pertinent here, whether they proscribe what ostensibly might be different acts but offer no intelligent standard for allowing a person of average intelligence to distinguish the conduct proscribed by one provision from that proscribed by the other.
As noted above, subsection 18-3-203(1)(b) and subsection 18-3-203(1)(i) both require proof that the perpetrator intended to cause bodily injury and, in fact, caused such injury. The distinction between the two lies in the means used to cause that injury. Subsection 18-3-203(1)(b) requires the use of a deadly weapon. Subsection 18-3-203(1)(i), in contrast, requires proof of bodily injury due to strangulation. Accordingly, on their face, these provisions ostensibly proscribe different acts. The question thus becomes whether they offer any intelligent standard for distinguishing between such acts.
…[To] decide whether second degree assault-strangulation and second degree assault-bodily injury with a deadly weapon proscribe identical conduct, we must consider whether strangulation, as it is defined in the second degree assault statute, will always involve the use of a deadly weapon….
Our case law “contemplates a two-step inquiry in determining whether an instrument is a deadly weapon. First, the object must be used or intended to be used as a weapon. Second, the object must be capable of causing serious bodily injury.” A “ ‘weapon’ is defined as ‘an instrument of offensive or defensive combat: something to fight with: something (as a club, sword, gun, or grenade) used in destroying, defeating, or physically injuring an enemy.’ ”
In the case of strangulation, we have little difficulty concluding that the perpetrator is using an instrument—whether hands or an object of some kind—as a weapon because in such a case, the perpetrator is using the instrument to injure the victim. In addition, when a person is applying sufficient pressure to impede or restrict another’s breathing or blood circulation, as required for second degree assault-strangulation, the person is obviously using the instrument of strangulation in a manner capable of causing serious bodily injury, whether or not serious bodily injury actually results: “When a victim is strangled, she is at the edge of a homicide. Unconsciousness may occur within seconds and death within minutes …. In ‘strangulation,’ external compression of the neck can impede oxygen transport by preventing blood flow to or from the brain or direct airway compression.”
Because, in a strangulation, the instrument being used to strangle the victim (whether hands or otherwise) is always being used as a weapon and will always be at least capable of causing serious bodily injury or death, we conclude that strangulation will always involve the use of a deadly weapon. As a result, with regard to acts of strangulation, we further conclude that subsections 18-3-203(1)(b) and (1)(i) proscribe identical conduct. And because these provisions proscribe identical conduct but the deadly weapon subsection punishes that conduct more harshly than the strangulation subsection, we conclude that under prevailing Colorado equal protection principles, a defendant may not be charged with second degree assault based on conduct involving strangulation under both subsections. Rather, the defendant must be charged under the strangulation provision.
In so concluding, we are not persuaded by the People’s various hypotheticals purporting to show distinctions between second degree assault-strangulation and second degree assault-bodily injury with a deadly weapon. In one of the People’s hypotheticals, an assailant lightly places his or her hands over the mouth or nose of a victim, “applying sufficient pressure to impede or restrict breathing for a matter of moments.” In the People’s view, such a scenario would satisfy the elements of second degree assault-strangulation but not those of second degree assault-bodily injury with a deadly weapon. For several reasons, we disagree.
First, as noted above, whenever a person, with the intent to cause bodily injury, causes bodily injury by applying sufficient pressure to the neck or by blocking the nose or mouth of another, thereby impeding or restricting the other person’s breathing or blood circulation, the hands or other instrument used to apply such pressure will have been used in a manner capable of producing death or serious bodily injury…. Thus, by definition, the perpetrator’s hands or other instrumentality of strangulation will have been used as a deadly weapon, even with allegedly “light” pressure.
Second, to the extent that the People’s hypotheticals envision scenarios in which the perpetrator is putting a hand over a victim’s mouth with allegedly “light” pressure and solely to keep the victim from screaming, it is not clear that this conduct would even constitute second degree assault-strangulation, which, as noted above, requires both an intent to cause bodily injury and resulting bodily injury.
Third, to the extent that the People’s hypotheticals turn on the degree of injury caused to the victim (e.g., bodily injury as opposed to serious bodily injury), such distinctions are not relevant to distinguishing between second degree assault-strangulation and second degree assault-bodily injury with a deadly weapon because the statutory scheme already addresses differences based on the degree of injury: strangulation resulting in bodily injury constitutes second degree assault under subsection 18-3-203(1)(i), and strangulation resulting in serious bodily injury constitutes first degree assault….
Finally, in our view, the People’s suggestion that the distinction between subsections 18-3-203(1)(b) and (1)(i) should somehow turn on the amount of pressure employed or the length of time a perpetrator applies such pressure does not articulate “a sufficiently pragmatic difference to permit an intelligent and uniform application of the law.” In particular, the People do not explain when, in the course of a strangulation, the hands or other instrumentality would cross the line from a non-deadly weapon to a deadly one, and we cannot discern a pragmatic standard that would allow a person of average intelligence to make such a determination.
For these reasons, we conclude that under prevailing Colorado equal protection principles, a defendant may not be charged with second degree assault based on conduct involving strangulation under both the deadly weapon and strangulation subsections of the second degree assault statute but rather must be charged under the strangulation subsection.
Although our analysis is based on the plain language of the statutory provisions at issue and we therefore need not resort to other tools of statutory construction, we note that the legislative history of subsection 18-3-203(1)(i) supports our conclusion here.
The General Assembly added strangulation subsections (and corresponding sentencing provisions) to the assault statutes in 2016. These subsections were intended to institute a change from prosecutors’ past practice. See Gen. Assemb. Legis. Council, Research Note for H.B. 16-1080, 70th Gen. Assemb., 2d Reg. Sess. (2016). Specifically, prior to these amendments, prosecutors charged strangulation under the deadly weapon subsection of the second degree assault statute. See Hearings on H.B. 16-1080 before the H. Judiciary Comm., 70th Gen. Assemb., 2d Sess. (Feb. 9, 2016) (statement of Mark Hurlbert, Assistant Arapahoe County District Attorney). Such a charge, however, frequently required expert testimony, and obtaining such testimony was not always easy, particularly in rural jurisdictions. As a result, strangulation often resulted in convictions of the lesser offense of misdemeanor third degree assault. See id. (statement of Rep. Mike Foote, sponsor of H.B. 16-1080).
To address these issues, one goal of the 2016 amendments was to create a specific strangulation statute that dispensed with proof of the deadly weapon element. Id. (statement of Rep. Foote) (“The elements [of subsection (1)(i)] don’t require the finding of hands as a deadly weapon.”). And a second goal was to elevate all forms of strangulation resulting in bodily injury to a felony in order to achieve more consistency in charging decisions and sentencing statewide. See Hearings on H.B. 16-1080…. Toward that end, the legislation’s sponsor stated that he envisioned that all strangulations would be prosecuted under this new provision. Hearings on H.B. 16-1080 before the H. Judiciary Comm., 70th Gen. Assemb., 2d Sess. (Feb. 9, 2016) (statement of Rep. Mike Foote).
In our view, this legislative history fully supports our conclusion that a defendant in Lee’s position must be charged under the strangulation, and not the deadly weapon, subsection of the second degree assault statute. In addition to violating the equal protection principles discussed above, concluding otherwise would undermine the legislature’s goal of achieving more consistency in charging decisions and sentencing statewide….
III. Conclusion
For the reasons set forth above, the deadly weapon subsection of the second degree assault statute, subsection 18-3-203(1)(b), and the strangulation subsection of that statute, subsection 18-3-203(1)(i), proscribe identical conduct, yet the deadly weapon subsection punishes that conduct more harshly than does the strangulation subsection. Accordingly, we conclude that under prevailing Colorado equal protection principles, a defendant may not be charged with second degree assault based on conduct involving strangulation under both the deadly weapon and strangulation subsections. Rather, the conduct must be charged under the strangulation subsection. We therefore affirm the judgment of the division below.
JUSTICE SAMOUR dissents and CHIEF JUSTICE COATS and JUSTICE BOATRIGHT join in the dissent.
JUSTICE SAMOUR, dissenting.
“Two roads diverged in a wood, and [this court] took the one less traveled by.” As in Robert Frost’s seminal poem, “The Road Not Taken,” that decision “has made all the difference.” But here, the path less trod is not a desirable one: This court’s stubborn loyalty to Colorado’s unique equal protection doctrine—one that has been soundly rejected by the U.S. Supreme Court and the overwhelming majority of jurisdictions—infringes on the charging discretion of the executive branch of government with no discernible justification beyond “my house, my rules.” … And while our court’s inexplicable resistance to the logical force of the U.S. Supreme Court’s unanimous decision in United States v. Batchelder (1979) is reason enough for me to dissent, I further believe that, even under Colorado’s peculiar equal protection doctrine, there is no due process violation here. Accordingly, I respectfully dissent on both grounds…
Notes and questions on People v. Lee
1. In your study of enforcement decisions in Chapter Three, you read State v. Cissell, in which the Supreme Court of Wisconsin found no due process or equal protection violation in Wisconsin’s two statutes that both criminalized failure to support one’s child, identical for all practical purposes except in the penalties they imposed. As noted in that earlier discussion, the approach of the Cissell court is endorsed by the U.S. Supreme Court with respect to the federal constitution, and followed in most states: a jurisdiction can enact overlapping or identical statutes that punish the same conduct, but impose different penalties. Prosecutors then have the discretion to choose which statute to use (and thus to determine what sentencing range will apply), and this structure does not violate the federal constitution or most state constitutions. As the dissenting opinion points out in People v. Lee, Colorado is an outlier on this specific issue. The Colorado Supreme Court has interpreted Colorado’s own state constitution to prohibit that kind of prosecutorial discretion. Thus, under Colorado law, when two statutes punish identical conduct but authorize different penalties, the defendant must be charged with the offense that carries the lesser penalty. What are the different penalties for assault by strangulation, 18-3-203(i), and assault by deadly weapon, 18-3-203(b)?
2. The dissent criticizes the majority for what it calls the “my house, my rules” approach. What, if anything, is wrong with “my house, my rules” as justification for Colorado’s unique approach? If you were a state court judge deciding whether to follow the majority approach (as in Cissell) or the Colorado approach, what factors would you consider? Which precedent would you follow?
3. Setting aside the equal protection / overlapping statutes issue, People v. Lee is fairly representative of assault prosecutions in other respects. For example, it is not unusual for jurisdictions to interpret the term “deadly weapon” broadly, as the Colorado courts have done. Many other jurisdictions have similarly held that fists or hands can constitute “deadly weapons” if they are used in a sufficiently violent manner. Note that these interpretations do not mean that all assaults by fist will in fact be charged as assaults with a deadly weapon. Instead, the broad interpretations further expand the discretion of prosecutors, who have the option, but not the obligation, to charge a more serious form of assault.
4. People v. Lee is also useful as a source of insight about criminalization choices. Why did the Colorado General Assembly (the state legislature) choose to add a specific strangulation statute even though the state had already criminalized assault by deadly weapon?
5. Another respect in which Lee is typical of many assault cases: the violence occurred in the context of an intimate relationship. Should domestic violence be codified as a separate offense? Many jurisdictions do take that approach. Indeed, assault of a spouse, intimate partner, or family member is one offense for which many jurisdictions have enacted mandatory arrest or mandatory prosecution statutes, an exception to the general rule of broad enforcement discretion enjoyed by police and prosecutors. However, courts have not always viewed those mandatory enforcement rules as actually creating an enforceable legal duty to arrest (or prosecute). See, e.g., Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005). Perhaps surprisingly, some advocates for victims of domestic abuse have questioned whether mandatory arrest and prosecution, and indeed the use of criminal interventions more broadly, is the best way to address problems of intimate violence. See Leigh Goodmark, Decriminalizing Domestic Violence: A Balanced Policy Approach to Intimate Partner Violence (2018).
KentuckyRevised Statutes 508.010. Assaultin the first degree.
A person is guilty of assault in the first degree when:
(a) He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(b) Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person.
[An additional statute relevant to the next case is quoted within the court’s opinion.]
COMMONWEALTH of Kentucky, Appellant
v.
Rita MITCHELL
Supreme Court of Kentucky
516 S.W.3d 803
April 27, 2017
Opinion of the Court by Justice HUGHES:
Kentucky Revised Statute (KRS) 501.030, one of the foundational provisions of the Penal Code, provides generally that a person may not be found guilty of a criminal offense unless
(1) He has engaged in conduct which includes a voluntary act or the omission to perform a duty which the law imposes upon him and which he is physically capable of performing; and (2) He has engaged in such conduct intentionally, knowingly, wantonly or recklessly as the law may require, with respect to each element of the offense.
(emphasis supplied). These are the Penal Code versions of the ancient “actus re[u]s” and “mens rea” requirements for criminal liability. As the emphasized portion of the statute indicates, the Penal Code allows for criminal liability premised upon a person’s failure to act, but only in limited circumstances. At the time of the alleged omission, the defendant must have been under a legal duty to act (as opposed to a moral or some other sort of extra-legal duty), such that his or her inaction amounted to a breach of that duty. And even then liability is appropriate only if the duty was one which the person was physically capable of performing….
RELEVANT FACTS
In October 2010, in response to reports that a “boy” was being “kept” in deplorable conditions, Monroe County police officers, fire and rescue workers, and a social worker … were all summoned to a mobile home … in Tompkinsville. The home was owned by Donna Bartley, but at the time its only occupants, aside from a large pack of dogs, were two people: Rita Mitchell, Bartley’s long-time friend and until recently house-mate, and Bartley’s then twenty-four year-old son, a young man we shall refer to as James.
Mitchell and James are both impaired and both have received Social Security Disability Benefits for several years. …Mitchell testified that in October 2010 and for some time prior, she suffered from chronic obstructive pulmonary disease (COPD), a condition which limited her mobility and for which she required an artificial oxygen supply. She also suffered, she testified, from chronic depression, which in the fall of 2010 had become acute and disabling.
James suffers from cerebral palsy, significant intellectual disability, and possibly from autism. These significant conditions have, throughout his life, made him highly dependent on others for the provision of even life’s most basic necessities, such as food, clothing, shelter, mobility, and health care. The record does not indicate how Bartley managed to care for James during his first seven years, but according to Mitchell’s testimony, when James was about seven, Bartley and Mitchell, who had known each other from childhood, agreed to become house-mates. Bartley was to provide the residence and to manage the household in exchange for Mitchell’s help with the cooking, cleaning, and care of James as well as Mitchell’s contribution of her disability benefits to the household income. This arrangement worked well enough that it continued even after Bartley had a second and then a third child, a son and a daughter, for both of whom Mitchell helped to care. A social worker testified that he visited the Bartley residence in 2003, while Bartley and Mitchell were caring for all three children, and found the home clean and orderly and the children, including James, adequately provided for.
By late spring or early summer of 2010, however, Bartley and Mitchell’s arrangement had begun to break down. …Bartley and her two younger children, by then teenagers, moved to a new home in Glasgow, Kentucky, while Mitchell and James were left behind in the Monroe County mobile home…. Bartley increasingly disassociated herself from her son and Mitchell…. Although she remained in control of the purse strings, including Mitchell’s and James’s social security benefits, Bartley ceased to make the mortgage payments on the mobile home; ceased to provide for trash removal; ceased to pay for water service, which was discontinued in August 2010; and visited the mobile home only on weekends, delivering food and a few gallons of water.
Mitchell was unable to cope with this virtual abandonment. We have described elsewhere the deplorable condition in which the rescue workers found the Monroe County mobile home in October 2010. SeeBartley v. Commonwealth, 400 S.W.3d 714 (Ky. 2013). Suffice it to say here, that by then trash had piled up outside the residence, the residence had been overrun by more than twenty semi-feral dogs, whose filth had accumulated on the floors and furniture, and Mitchell had apparently ceased making any effort to care for James, beyond perhaps giving him some water and the microwavable snack foods that Bartley provided. In a back room with the radio blaring to drown out the young man’s screams, the rescue workers found James naked on a bare mattress across which had been spread a sheet of plastic….
As bad as James’s plight was (and to a person the rescue workers testified that they had never before encountered a scene as wrenching), the treating physician testified that for James the outcome easily could have been [fatal]….
In December 2010 the Monroe County grand jury indicted Bartley and Mitchell. Both women were charged with first-degree criminal abuse of James, under KRS 508.100, and with first-degree assault, under KRS 508.010. With respect to both women, the latter charge alleged, among other things, that they had caused James serious physical injury by “severely neglecting to meet his physical needs.”
…The jury found both [defendants] guilty of first-degree assault, found Bartley guilty of first-degree (intentional) criminal abuse, and found Mitchell guilty of second-degree (wanton) criminal abuse. …[I]n December 2014, [the Court of Appeals] affirmed Mitchell’s second-degree criminal abuse conviction, but reversed her conviction for first-degree assault. With respect to the assault, the panel concluded that Mitchell could not be said to have assumed a legal duty to care for James, since she had done nothing to prevent Bartley, the biological mother, from providing that care in the first instance….
The Commonwealth contends that in so ruling the Court of Appeals erred….
ANALYSIS
As the discussions in Bartley and Staplesv. Commonwealth (Ky. 2014) indicate, our trial courts have been confronted in recent years by a new generation of crime-by-omission cases, cases involving new forms of parental neglect and abuse and cases brought against non-parents for alleged failures to protect or care for the children of others. These cases have posed difficult and intertwined questions of both substance and procedure. This case is yet another of that sort.
As we explained in Bartley, “to proceed with a prosecution alleging a criminal omission, the Commonwealth must … identify a specific ‘legal duty,’ the breach of which would subject the defendant to criminal sanction. Any dispute about the existence of the alleged duty should be resolved by the trial court, and disputes about the facts giving rise to that duty in the particular case should be incorporated in the instructions for jury resolution.”
… In Bartley, we concluded that the Commonwealth’s failure to identify at the outset the specific “legal duty” Bartley was alleged to have breached did not amount to a palpable error. As we explained, a parent’s non-delegable duty to support and care for a disabled adult child has long been established in our law, both our statutory law and our case law….
As the Commonwealth notes, Mitchell’s appeal raises similar questions. In her case, too, it appears, the Commonwealth failed to make clear at the outset the specific “legal duty” Mitchell was alleged to have breached, and in her case, too, we are initially confronted with a question as to whether Mitchell adequately preserved that error. Inasmuch as Mitchell’s objections during trial were essentially the same as Bartley’s, we agree with the Commonwealth that she did not…. Accordingly, Mitchell is entitled to relief only if the error was palpable, i.e., only if the error was, or should have been, apparent, and then only if it resulted in “manifest injustice,” what we have characterized as either a skewed outcome or a proceeding “so fundamentally tainted … as to threaten [the] defendant’s entitlement to due process of law.”
Implicitly, at least, the Court of Appeals concluded that the error—the failure to specify Mitchell’s alleged duty to care for James—was indeed palpable. The panel relied on West v. Commonwealth (Ky. App. 1996) [for the proposition] that affirmative legal duties of care can arise in at least four distinct circumstances:
[F]irst, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.
Although the Commonwealth did not specify any theory whereby Mitchell could be found to have breached a legal duty to care for James, the appellate panel understood the Commonwealth to have alleged only the fourth type of circumstance mentioned [above], i.e., that Mitchell had through her relationship with Bartley voluntarily assumed James’s care. In its view, however, Mitchell could not reasonably be found to have secluded James from the aid of others—at least from his mother’s aid—and thus, under West’s fourth scenario, she could not be deemed subject to assault liability for having failed to provide care that it was really Bartley’s duty to provide….
[The Commonwealth argues that] even if the Court of Appeals strict and literal reading of West’s fourth set of duty-creating circumstances accurately reflects the law, i.e., even if no legal duty of care arises from the voluntary assumption of a care-giving role provided there is no concomitant seclusion of the helpless person from all other caregivers, the appeals panel erred by disregarding evidence that Mitchell did indeed isolate James not only from the world at large, but from his mother as well. Bartley’s defense, in fact, based on snippets of Mitchell’s statements to investigators and her trial testimony, was that James’s situation only became distressing during the two or so weeks prior to his rescue, and during that period Bartley relied—carelessly, perhaps, but not criminally—on Mitchell’s repeated assurances that James was doing fine. That evidence was sufficient, according to the Commonwealth, to allow even a strict “voluntary assumption of duty” case against Mitchell to go to the jury.
More fundamentally, the Commonwealth contends that the appeals panel’s narrow construction of West’s fourth common-law duty category does not accurately reflect the law. Mitchell’s voluntary assumption of James’s care could rightfully be deemed to have ripened into a legal duty, a sort of in-loco-parentis duty, the Commonwealth implies, notwithstanding Bartley’s concomitant and arguably superior duty as a parent. The prosecutor focused on the seventeen-year duration of Mitchell’s care of James and the evidence that Bartley and Mitchell were, on some level, colluding to keep James from being cared for by others lest, as Mitchell testified, Bartley lose custody of James and his accompanying social security benefits. In these circumstances, the Commonwealth insists, Bartley’s duty ought not shield Mitchell from the consequences of her own….
We … agree with the Commonwealth that the evidence against Mitchell was sufficient to support potentially viable assault-by-omission theories. We thus further agree that the Court of Appeals panel erred by disregarding that potential and dismissing Mitchell’s assault charge altogether. Accordingly, the Court of Appeals’ opinion must be reversed.
As the Commonwealth’s argument also makes abundantly clear, however, the Commonwealth’s failure to specify the duty of care it was alleging against Mitchell had an utterly different effect on Mitchell’s case than its similar failure with respect to Bartley had on hers. In Bartley, the Commonwealth’s error meant little, since it was clear to all—parties, court, and jury alike—that Bartley was being prosecuted for injuries arising from the alleged breach of her parental duty, a legal duty well and clearly established. With respect to Mitchell, however, the Commonwealth’s failure to specify the legal duty (or duties) Mitchell was alleged to have breached meant much more.
It meant that no one had a clear idea how to respond to the evidence the Commonwealth presented, and so had to respond uncertainly. Mitchell could not tailor her defense to specific claims that a particular duty had arisen and been breached; the trial court had to rely on generalities in assessing Mitchell’s directed-verdict motion; and most importantly, the jury, having not been apprised that a particular legal obligation was being alleged and that moral obligation alone was not enough, was left to its own devices when asked to find whether or not Mitchell had “caused serious physical injury to [James] by severely neglecting to meet his needs.” Each of these uncertainties constitutes a serious flaw in the proceedings, and their combination, we are convinced, denied Mitchell a fundamentally fair trial as to the assault charge. The Commonwealth’s error in not specifying the legal duty it believed Mitchell had breached (and the court’s error in not insisting that it do so), was thus palpable…. [It] so tainted the trial as to threaten Mitchell’s entitlement to due process.
… In our view, there is clearly evidence in the record of this case that could support the finding of a legal duty on the part of Mitchell. … [But] the jury must receive a specific instruction on the nature of the duty which Mitchell owed to James and the alleged breach of that duty. Only then has the jury been given the necessary instruction on the law applicable to the criminal omission form of first-degree assault with which Mitchell has been charged.
CONCLUSION
In sum, we agree with the Court of Appeals, albeit on different grounds, that Mitchell is entitled to relief, but we also agree with the Commonwealth that the relief awarded by the appeals panel was not legally appropriate. The problem was not that the Commonwealth failed to introduce sufficient evidence of an assault…. The problem, rather, was that the Commonwealth failed adequately to specify the duty giving rise to assault-by-omission it was alleging, and that failure undermined the fairness of Mitchell’s trial. Mitchell’s remedy is thus not the dismissal of the assault charge, but rather the reversal of her assault conviction and sentence. Accordingly we reverse the Court of Appeals’ Opinion and remand this matter to the Monroe Circuit Court for additional proceedings consistent with this Opinion.
Notes and questions on Commonwealth v. Mitchell
1. In Chapter Two, we discussed the concept of “actus reus” as well as the “voluntary act requirement.” The principle that a crime requires an actus reus, or a guilty act, is widely invoked as a constraint on criminalization choices that prevents legislatures from criminalizing mere thoughts in the absence of action. But doctrines of omission liability do permit the criminalization of inaction in some circumstances. The general rule is that omission liability requires a clear legal duty to act. That duty to act could come from the criminal statute itself, so a legislature could define a duty to act (such as a duty that persons with criminal convictions register with the authorities, as required by the statute in Lambert v. California). Or the duty to act could come from another source of law. Citing West v. Commonwealth, the Kentucky Supreme Court identifies four possible sources of duties to act that could then support criminal liability for an omission: a statute, a status relationship (such as parent-child), a contract, or a voluntary assumption of care while secluding the victim from other sources of care. Given these four categories, did Rita Mitchell have a legal duty to provide care to James, according to the Kentucky Supreme Court? What are the strongest arguments for or against finding such a duty?
2. Recall (from Chapter Two) that courts treat “actus reus” and “voluntary act” as two separate requirements. The first term captures the idea that a crime should involve some act or conduct (or omission). The second emphasizes volition. The “voluntary act requirement” reflects an effort to distinguish voluntary acts from involuntary ones. Arguably, Kentucky law tries to distinguish voluntary omissions from involuntary ones: note the statutory requirement that an omission be one that the defendant “is physically capable of performing.”
3. You are reading about omission liability in the context of an assault charge, but keep in mind that omission liability may be imposed for many different types of offenses – including, again, a failure to register as a convicted person if required by law to do so. Filing requirements that carry criminal penalties, such as a tax crime for failure to file, also rely on omission liability. As the Mitchell court notes, omission liability is used fairly often in cases of abuse and neglect, when parents or other designated caregivers are charged with failing to provide adequate care to their dependents.
4. Can omissions be violent? At least some courts have answered in the affirmative. In United States v. Scott, 990 F.3d 94 (2d. Cir. 2021), the Second Circuit concluded that assault by omission and manslaughter by omission could be classified as “violent crimes” for purposes of federal sentencing enhancements if the offenses involved the intentional infliction of injury, even if the “infliction” was accomplished by a failure to act. The classification of crimes as “violent” is important, because many U.S. jurisdictions impose more severe sentences on a defendant who has prior convictions for “violent” offenses. Legal definitions of “violent crime” or “crimes of violence” often extend much more broadly to include any crime that involves conduct that creates a risk of physical injury, whether or not any injury is intended or accomplished. See Alice Ristroph, Criminal Law in the Shadow of Violence, 62 Ala. L. Rev. 571, 602-610 (2011).
5. Rita Mitchell was charged with both first degree assault (the main focus of this opinion) and a separate offense of “criminal abuse.” She was convicted of second degree criminal abuse, which occurs when a person “wantonly abuses another person … and thereby … causes torture, cruel confinement, or cruel punishment….” Kentucky Rev. Statutes 508.110. Abuse, in turn, is defined under Kentucky law as “the infliction of physical pain, injury, or mental injury, or the deprivation of services by a person which are necessary to maintain the health and welfare of a person.” Kentucky Rev. Statutes 508.090(1). In a footnote not included in the edited opinion above, the Kentucky Supreme Court concluded that criminal abuse was a “result crime” that could be established by showing that a defendant, by either omission or commission, caused a given result (e.g., torture or cruel confinement). Mitchell had directly caused James’s confinement, the court concluded, and thus her conviction for criminal abuse did not require proof that she had a legal duty to care for James. See Mitchell, 516 S.W.3d 803, 812 n. 3.
Check Your Understanding (6-1)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Homicide
Homicide is the umbrella term used to describe a group of offenses that all involve causing the death of another person. Murder and manslaughter are the most familiar categories of homicide. These categories existed and evolved in English common law centuries ago, and then were adopted in the American colonies and then in the states. The labels murder and manslaughter are still used in most modern statutory regimes. But jurisdictions may define other types of homicide as well, such as negligent homicide or vehicular homicide, and jurisdictions often divide murder and manslaughter into subcategories, such as first degree murder, second degree murder, and so on. The factors that differentiate murder from manslaughter, or first degree murder from lesser degrees, can again vary by jurisdiction. If you are trying to figure out how a particular killing is most likely to be classified, it is always a good idea to check the statutes of the specific jurisdiction where the killing took place. But with that said, there are some typical patterns that hold true across most jurisdictions. For example, murder statutes usually (but not always) require an intent to kill, while manslaughter or other forms of homicide often do not require intentional killing. This section aims to help you see both commonalities and variations in the law of homicide across different jurisdictions.
The actus reus of any homicide offense is usually simply stated: causing the death of another human being. The simplicity may be deceptive, though, because what it means to “cause” death is frequently contested in homicide cases. Several of the cases in this section will help you identify and apply the principles that courts use to evaluate causation.
The mens rea of homicide offenses, in contrast, varies much more widely. Indeed, the defendant’s mental state, or mens rea, is usually the distinguishing factor that separates different types of homicide. To get an idea of the types of mental states that have long been seen as relevant to the legal evaluation of a killing, consider the common law definition of murder as a killing with “malice aforethought.” Over time, in homicide law “malice aforethought” came to stand for not one single state of mind, but four different mental states. (The term malice is also sometimes used outside of homicide law; for one example, see the definitions of arson discussed at the end of Chapter Five.) The prosecution could establish malice aforethought by showing that the defendant acted with an intent to kill or an intent to cause serious bodily injury or extreme recklessness (sometimes described as acting with a “depraved heart” or an “abandoned and malignant heart”) or intent to commit a felony (“felony murder”). Any of these mental states could suffice to convict a defendant of murder. Common law manslaughter, on the other hand, was usually defined as a killing without malice. One form of manslaughter was an intentional killing “in the heat of passion,” or in response to some legally adequate form of provocation. Manslaughter also included unintentional killings, such as causing death through ordinary (but not extreme) recklessness, or causing death in the course of some unlawful but not felonious act (“misdemeanor-manslaughter”).
In today’s statutory world, different levels of homicide are codified by each jurisdiction, and the influence of common law categories is visible but not determinative. Most U.S. states divide the crime of murder into degrees; first-degree murder may require an intentional, premeditated killing, while second-degree murder may include killings by extreme recklessness or killings in the course of a different felony offense. Manslaughter is often but not always defined similarly to the common law definition. And many jurisdictions include a lesser category of homicide such as negligent homicide or vehicular homicide. Again, there are no universal definitions of any of these specific homicide offenses; always consult the relevant statute! Nevertheless, the cases below should help you get a sense of typical definitions.
The Basics of First Degree Murder
Kansas Stat. § 21-5402 (formerly 21-3401)
a) Murder in the first degree is the killing of a human being committed:
(1) Intentionally, and with premeditation; or
(2) in the commission of, attempt to commit, or flight from any inherently dangerous felony.
STATE of Kansas, Appellee
v.
Joseph Dodds MORTON, Appellant
Supreme Court of Kansas
86 P.3d. 535
March 26, 2004
The opinion of the court was delivered by BEIER, J.:
Defendant Joseph Dodds Morton appeals his first-degree murder and aggravated robbery convictions. He argues that he could not be convicted of first-degree murder on the combined theories of premeditation and felony murder, that the evidence on premeditation presented at his trial was insufficient, and that prosecutorial misconduct and cumulative error require reversal.
Morton was discharged from his employment at a grocery store. He decided to rob the store; he stole an unloaded gun from his mother…, loaded the gun with loose bullets…, and returned to the store with the excuse of returning his uniform.
Before entering the store, Morton parked across the street to check the number of cars in the parking lot and ensure that only the manager remained inside after hours. He hid the gun between his two work shirts. When he entered, store manager David Morrell asked about Morton’s box cutter and bailer key. Morton then left the store and sat in his car for approximately 2 minutes, pondering whether he should commit the crime. He then reentered the store and told Morrell he “was [t]here for the money.” Morrell offered no resistance and led Morton to the store office, where money was on a desk. According to Morton, he then squeezed the trigger of the gun. He said he was not sure where he was pointing the gun and fired to scare the manager. After pulling the trigger, however, he heard the manager hit the floor. Morton left the store [to the parking lot], … and then returned…. He stole a video recorder and videotape, destroyed security monitors, and took a cordless phone to ensure that Morrell could not call the police. According to Morton, when he returned to the office, he saw Morrell slumped on the floor. He admitted that Morrell looked dead. He did not check him for signs of life or summon help.
Other evidence at trial demonstrated Morrell had been shot in the face from a distance of not more than three feet.
After the crime, Morton went to play billiards with friends. He told his girlfriend that he robbed the store, purchased stereo equipment for his car and 2 pounds of marijuana, and took his girlfriend shopping. A few days later, Morton offered to pay a friend to destroy the security videotape and then fled the state. He eventually confessed to the crime, making a recorded statement to the police.
At trial, the jury received the following Instruction No. 9:
“In this case, the State has charged the defendant Joseph Dodds Morton with one offense of Murder in the First Degree and has introduced evidence on two alternative theories of proving the crime.
“The State may prove murder in the first degree by proving beyond a reasonable doubt that the defendant killed David Morrell intentionally and with premeditation or in the alternative by proving beyond a reasonable doubt that the defendant killed David Morrell and that such killing was done while in the commission of a felony or in flight from attempting to commit a felony, to-wit: aggravated robbery, as fully set out in these instructions.
“Here evidence is presented on the two alternate theories of proving the crime charged, you must consider both in arriving at your verdict.”
Instruction No. 10 stated, in part:
“If you do not have a reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you will enter a verdict of guilty.”
During closing argument, the prosecutor said:
“Was this killing premeditated? That’s the second question we want to look at. And to look at that question, we look at the jury instructions. And if you remember in the jury instructions, premeditation means to have thought it over beforehand for any length of time. Premeditation does not necessarily mean that somebody has to plan it out weeks or months beforehand. And if you remember—you look at that police statement. Detective Zeigler’s last question was, okay, did you plan this out last week or weeks before and he said no. But it doesn’t have to be weeks or months before.
“We know he walked off the job on Friday. We don’t know, though, if he started thinking about it Saturday or Sunday or Monday or Tuesday. But we do know that he started thinking about it before he got to the Save–A–Lot store. And remember one thing. Premeditation means to have thought over the matter beforehand for any length of time.”
The prosecutor then gestured with her fingers as though she was firing a gun and continued: “That can be premeditation under the laws of the State of Kansas. One squeeze of the trigger is all it takes.” The defense did not object.
The jury returned a guilty verdict, but its verdict form stated the jurors were “unable to agree whether the defendant is guilty of Murder in the First Degree on the theory of premeditated murder or felony murder.” The jury “unanimously [found] the defendant guilty of murder in the first degree on the combined theories of premeditated murder and felony murder.”
Conviction of First–Degree Murder on Combined Theories
Morton breaks this first issue in two, presenting it first as a violation of his right to a unanimous verdict and second as an error in instructions. Both challenges, when reduced to their essence, require us to decide a question of law, and our review is therefore unlimited.
… Morton points to language from State v. Vontress (1998) and State v. Wakefield (1999) [that emphasizes] “that as stated in the statute, premeditated murder and felony murder were separate and distinct offenses.” This language is confusing when considered in isolation. It is inconsistent with previous and succeeding Kansas case law, as well as the reasoning and outcome of the cases in which it appears. …[T]he statement was dicta, included in Vontress without any analysis of whether premeditated murder and felony murder actually constitute separate crimes.
Before Vontress and Wakefield were decided, this court had stated clearly: “Premeditated and felony murder are not separate, distinct offenses but are two separate theories under which the crime of first-degree murder may be committed.” In essence, the felonious conduct proved in a felony murder is a stand-in for the deliberation and premeditation usually required to be proved in a first-degree murder case.
In Vontress, the jury was presented with a verdict form similar to the one used in this case. During deliberations it marked the form to indicate that the first-degree murder conviction was based on the jury’s unanimous agreement on the defendant’s guilt of premeditated murder and its unanimous agreement on the defendant’s guilt of felony murder. The defendant received the harsher sentence available only for premeditated murder. The defendant appealed, arguing the verdict was ambiguous. We held that there was no ambiguity. The jury had found the defendant guilty under each theory of first-degree murder, and his sentence for premeditated murder was not illegal.
… Regardless of whether we consider jury unanimity a federal constitutional guarantee or a state statutory right, [our precedents] confirm that Morton got all that he was entitled to in this case. Although we know from the verdict form that Morton’s jury could not agree on premeditation or felony murder, it was unanimous as to his guilt of first-degree murder. That was enough as long as the evidence of each means was sufficient. Instruction and conviction on the combined theories was proper. Moreover, because Morton was not given the harsher sentence appropriate only for a unanimous conviction under a premeditation theory, his sentence also would pass muster.
Sufficiency of the Evidence of Premeditation
As discussed above, in order to uphold a conviction based on alternative means under State v. Timley, we must see sufficient evidence of each means in the record before us. Morton’s next argument is that the evidence of premeditation presented at his trial was insufficient.
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.”
We have recognized several factors that will give rise to an inference of premeditation:
“(1) the nature of the weapon used; (2) lack of provocation; (3) the defendant’s conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. The jury has a right to infer premeditation from the established circumstances if the inference is a reasonable one.” State v. Murillo (2000).
We see ample evidence to support the second and third factors in the record before us.
Morton admitted Morrell did nothing to provoke him. There was no resistance on the manager’s part.
In addition, Morton’s actions before entering and reentering the store and after the shooting reflected careful initial planning, reconsideration and a determination to proceed, and callous disregard of the consequences. Morton admitted deciding ahead of time to rob the store. He then went to no small trouble to steal the gun from his mother and prepared an excuse to use in the event he was questioned about his reappearance at the store after being discharged from employment. He then drove to the store and parked across the street, where he could carefully observe how many cars remained in its parking lot, guaranteeing that he would be alone with Morrell after business hours. After entering the store for the first time, he left and sat in his car awhile, thinking through his plan again and deciding to proceed. He then reentered the store and followed Morrell to the store office, where he took the money on the desk.
After intentionally squeezing the trigger, shooting Morrell in the face, and hearing Morrell hit the floor, Morton left the store a second time. He returned to his car, “took a turn around in the parking lot,” and apparently decided he had not done enough to cover his tracks. He entered the store a third time and observed the apparently lifeless Morrell on the floor. Morton did nothing to assist Morrell. Instead, he stole or destroyed the security camera and videotape and monitors that might have led to his apprehension by law enforcement. Morton then went out to socialize, playing billiards and purchasing marijuana. He later offered to pay a friend to destroy the security videotape and then left town.
With all of this evidence in the State’s favor, some of it from the defendant himself, members of the jury could have reasonably disregarded Morton’s story that he fired the gun only to scare Morrell and did not know where it was pointing. There was ample evidence to support premeditation.
Prosecutorial Misconduct in Closing Argument
When there is no contemporaneous objection to a prosecutor’s argument, we reverse only if the prosecutor’s misconduct rises to the level of violating a defendant’s right to a fair trial and denies the defendant his or her Fourteenth Amendment right to due process. Further, we generally employ a two-step process to analyze prosecutorial misconduct claims. First, we decide whether the prosecutor’s comments were outside the wide latitude allowed in discussing the evidence. Second, we decide whether the comments constituted plain error; that is, whether the statements were so gross and flagrant that they could have prejudiced the jury against the defendant and denied him or her a fair trial. If so, reversal is required.
In this case, the prosecutor’s questionable conduct consisted of gesturing with her fingers as though she were firing a gun and stating: “That can be premeditation under the laws of the State of Kansas. One squeeze of a trigger is all it takes.” This was not a comment on the evidence but a purported statement of controlling law. Because a misstatement of controlling law denies a criminal defendant his or her right to due process, we agree with the defense that the alleged error must be reviewed on appeal despite the absence of an objection at trial.
In State v. Pabst (2002), this court held that premeditation was defined adequately in Pattern Instructions for Kansas (PIK) Crim.3d 56.04(b), as “to have thought over the matter beforehand.” In our view, premeditation “means something more than the instantaneous, intentional act of taking another’s life.”
In Pabst, the prosecutor had said:
“ ‘[T ]heres no amount of time required.
….
“ ‘You notice that there’s no time element in premeditation. There’s no interval that’s required. Theres no plan. You don’t have to think about it for weeks.
….
“ ‘You don’t have to think about it for weeks, days, hours, 50 minutes, ten minutes. It means to have thought over the matter beforehand. Its the conscious act of a person.’”
We held that this language did not constitute a misstatement of the law and thus did not qualify as prosecutorial misconduct.
However, we cautioned prosecutors to read State v. Holmes (2001), [in which] the prosecutor had said: “[P]remeditation can occur in an instant. That’s the law in the State of Kansas.” We held that this definition did constitute a deliberate misstatement, noting the prosecutor had been cautioned in the instructions conference before argument began. In Pabst, we amplified that holding by warning prosecutors to avoid the use of the word “instant” or any synonym or motion that would convey that message.
[In a later case,] we … found the prosecutor’s statement that “something can be premeditated as soon as it happens” to be a misstatement of the law. In that case, however, this court saw nothing in the record to indicate the misstatement was deliberate and held it to be harmless.
When the prosecutor in this case pantomimed the firing of a gun and made her accompanying comment that “[o]ne squeeze of a trigger is all it takes,” she conveyed the message that premeditation can be instantaneous, or virtually so. This definition of premeditation approximated those given by the prosecutors in Holmes… and we conclude that she misstated Kansas law. Although she also mentioned the correct definition from the jury’s instructions more than once, we do not regard this as a cure for her colorful misstatement of such a critical point—a definition of one of the crime’s essential elements.
The defense argues that we should also hold that the prosecutor’s conduct was deliberate rather than unintentional because she was a “seasoned veteran.” Morton contends that the prosecutor necessarily knew better and purposely ignored what she knew to bolster weak evidence of premeditation.
We can go along with defendant approximately halfway. Morton is correct that an experienced prosecutor such as the one in his case should have been well aware of … numerous recent cases on prosecutorial misconduct and/or the definition of premeditation. … This prosecutor should have known better and apparently did, given her references to the correct definition in the jury instructions. As our earlier discussion makes evident, however, we cannot agree with Morton that the State’s evidence of premeditation was weak. We do not discern any motivation for deliberate misconduct.
That being said, we are nevertheless compelled to hold here that the prosecutor’s misstatement regarding premeditation requires reversal. Although we see plenty of evidence of premeditation in Morton’s behavior, when judged under the correct definition, we know in this particular case that not every member of the jury was willing to convict on that basis. Because of the jury’s specific statement in its verdict form that it could not agree unanimously on the premeditation theory, we are not comfortable calling the prosecutor’s error harmless beyond a reasonable doubt. Morton is therefore entitled to reversal and a new trial.
Notes and questions on Morton
1. Like many jurisdictions, Kansas separates homicides—unlawful killings—into several subcategories. And like many jurisdictions, Kansas distinguishes among different types of homicides by focusing on the defendant’s mental state. Joseph Morton, the defendant here, did not argue that he didn’t kill the store manager. Instead, the defense argued that the evidence was insufficient to establish the right mental state for first degree murder. In Kansas (again, like many other jurisdictions), first degree murder requires “premeditation.” How is that term defined in Kansas? What evidence here supports a finding of premeditation?
2. Some of the evidence of premeditation submitted here relates to the defendant’s actions after the shooting. How do acts taken after a shooting help establish the defendant’s state of mind before the shooting?
3. Sufficiency of evidence (or insufficiency) is one common basis for appeals in criminal law; jury instructions are another. In this case, the court focuses also on the prosecutor’s characterization of the law in her closing argument. Compare the prosecutor’s statements in Pabstand Holmes, both quoted in this case. The statement in Pabstwas found to be permissible by an appellate court, but the statement in Holmeswas found to be a (deliberate) misstatement. What is the key difference between the statements? Were the prosecutor’s statements at Morton’s trial more like one of these precedents than the other?
4. Kansas law defines first degree murder to include intentional, premeditated killings and killings in the course of “any inherently dangerous felony.” There are thus two ways to commit first degree murder in Kansas—premeditated murder, or felony murder. Most U.S. jurisdictions have some form of “felony murder,” or a type of murder that involves causing a death while committing some other felony offense. Jurisdictions vary in whether they classify felony murder as first, second, or even third degree murder; they also vary with regard to which felony offenses can serve as the predicate for a felony murder conviction. Among commentators and courts, felony murder is controversial, in part because it typically requires no proof of mens rea other than the mens rea of the underlying felony. Thus, if a defendant commits a felony offense with a mental state of recklessness, but (accidentally and unintentionally) kills someone while committing that felony, the defendant may be guilty of murder.
5. Morton was charged and convicted with aggravated robbery, a felony, along with murder. The prosecution argued both that Morton killed intentionally with premeditation and that Morton killed in the course of an inherently dangerous felony. The jury convicted Morton of first degree murder, but apparently was not unanimous about the underlying rationale for first degree murder—premeditated murder or felony murder. The appellate court found this “alternative means” conviction to be acceptable, so long as there was adequate evidence of each theory of murder. Is this approach consistent with the requirement of Winshipthat the factfinder must be convinced of each element of the offense beyond a reasonable doubt?
Murder v. Manslaughter
N.Y. Penal Law 125.25:
A person is guilty of murder in the second degree when:
1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that:
(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”
N.Y. Penal Law 125.20(2):
A person is guilty of manslaughter in the first degree when:
… 2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision.
Gordon G. PATTERSON, Jr., Appellant
v.
State of NEW YORK
432 U.S. 197
Supreme Court of the United States
Decided June 17, 1977
Mr. Justice WHITE delivered the opinion of the Court.
I
…After a brief and unstable marriage, the appellant, Gordon Patterson, Jr., became estranged from his wife, Roberta. Roberta resumed an association with John Northrup, a neighbor to whom she had been engaged prior to her marriage to appellant. On December 27, 1970, Patterson borrowed a rifle from an acquaintance and went to the residence of his father-in-law. There, he observed his wife through a window in a state of semiundress in the presence of John Northrup. He entered the house and killed Northrup by shooting him twice in the head.
Patterson was charged with second-degree murder. In New York there are two elements of this crime: (1) “intent to cause the death of another person”; and (2) “caus(ing) the death of such person or of a third person.” N.Y. Penal Law s 125.25. Malice aforethought is not an element of the crime. In addition, the State permits a person accused of murder to raise an affirmative defense that he “acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.”
New York also recognizes the crime of manslaughter. A person is guilty of manslaughter if he intentionally kills another person “under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance.” Appellant confessed before trial to killing Northrup, but at trial he raised the defense of extreme emotional disturbance. … The jury found appellant guilty of murder. …
II
It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally “within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,” and its decision in this regard is not subject to proscription under the Due Process Clause unless “it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
In determining whether New York’s allocation to the defendant of proving the mitigating circumstances of severe emotional disturbance is consistent with due process, it is therefore relevant to note that this defense is a considerably expanded version of the common-law defense of heat of passion on sudden provocation and that at common law the burden of proving the latter, as well as other affirmative defenses indeed, “all . . . circumstances of justification, excuse or alleviation” rested on the defendant….
III
… [I]n revising its criminal code, New York provided the affirmative defense of extreme emotional disturbance, a substantially expanded version of the older heat-of-passion concept; but it was willing to do so only if the facts making out the defense were established by the defendant with sufficient certainty. The State was itself unwilling to undertake to establish the absence of those facts beyond a reasonable doubt, perhaps fearing that proof would be too difficult and that too many persons deserving treatment as murderers would escape that punishment if the evidence need merely raise a reasonable doubt about the defendant’s emotional state. It has been said that the new criminal code of New York contains some 25 affirmative defenses which exculpate or mitigate but which must be established by the defendant to be operative. The Due Process Clause, as we see it, does not put New York to the choice of abandoning those defenses or undertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment.
The requirement of proof beyond a reasonable doubt in a criminal case is “bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” In re Winship (Harlan, J., concurring). The social cost of placing the burden on the prosecution to prove guilt beyond a reasonable doubt is thus an increased risk that the guilty will go free. While it is clear that our society has willingly chosen to bear a substantial burden in order to protect the innocent, it is equally clear that the risk it must bear is not without limits; and Mr. Justice Harlan’s aphorism provides little guidance for determining what those limits are. Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person. Punishment of those found guilty by a jury, for example, is not forbidden merely because there is a remote possibility in some instances that an innocent person might go to jail.
It is said that the common-law rule permits a State to punish one as a murderer when it is as likely as not that he acted in the heat of passion or under severe emotional distress and when, if he did, he is guilty only of manslaughter. But this has always been the case in those jurisdictions adhering to the traditional rule. It is also very likely true that fewer convictions of murder would occur if New York were required to negative the affirmative defense at issue here. But in each instance of a murder conviction under the present law New York will have proved beyond a reasonable doubt that the defendant has intentionally killed another person, an act which it is not disputed the State may constitutionally criminalize and punish. If the State nevertheless chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may assure itself that the fact has been established with reasonably certainty…. We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused.
This view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes. But there are obviously constitutional limits beyond which the States may not go in this regard. “(I)t is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.” …
IV
It is urged that Mullaney v. Wilbur necessarily invalidates Patterson’s conviction. In Mullaney the charge was murder, which the Maine statute defined as the unlawful killing of a human being “with malice aforethought, either express or implied.” The trial court instructed the jury that the words “malice aforethought” were most important because “malice aforethought is an essential and indispensable element of the crime of murder.” Malice, as the statute indicated and as the court instructed, could be implied and was to be implied from “any deliberate, cruel act committed by one person against another suddenly . . . or without a considerable provocation,” in which event an intentional killing was murder unless by a preponderance of the evidence it was shown that the act was committed “in the heat of passion, on sudden provocation.” The instructions emphasized that “malice aforethought and heat of passion on sudden provocation are two inconsistent things; thus, by proving the latter the defendant would negate the former.”
Wilbur’s conviction, which followed, was affirmed. The Maine Supreme Judicial Court held that murder and manslaughter were varying degrees of the crime of felonious homicide and that the presumption of malice arising from the unlawful killing was a mere policy presumption operating to cast on the defendant the burden of proving provocation if he was to be found guilty of manslaughter rather than murder — a burden which the Maine law had allocated to him at least since the mid-1800’s.
The Court of Appeals [held] that the presumption unconstitutionally shifted to the defendant the burden of proof with respect to an essential element of the crime…. This Court, accepting the Maine court’s interpretation of the Maine law, unanimously agreed with the Court of Appeals that Wilbur’s due process rights had been invaded by the presumption casting upon him the burden of proving by a preponderance of the evidence that he had acted in the heat of passion upon sudden provocation.
Mullaney’s holding, it is argued, is that the State may not permit the blameworthiness of an act or the severity of punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the case may be, beyond a reasonable doubt. In our view, the Mullaney holding should not be so broadly read….
The Maine Supreme Judicial Court made it clear that malice aforethought, which was mentioned in the statutory definition of the crime, was not equivalent to premeditation and that the presumption of malice traditionally arising in intentional homicide cases carried no factual meaning insofar as premeditation was concerned. Even so, a killing became murder in Maine when it resulted from a deliberate, cruel act committed by one person against another, “suddenly without any, or without a considerable provocation.” Premeditation was not within the definition of murder; but malice, in the sense of the absence of provocation, was part of the definition of that crime. Yet malice, i.e., lack of provocation, was presumed and could be rebutted by the defendant only by proving by a preponderance of the evidence that he acted with heat of passion upon sudden provocation. In Mullaney we held that however traditional this mode of proceeding might have been, it is contrary to the Due Process Clause as construed in Winship.
As we have explained, nothing was presumed or implied against Patterson; and his conviction is not invalid under any of our prior cases. The judgment of the New York Court of Appeals is
Affirmed.
Mr. Justice POWELL, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
In the name of preserving legislative flexibility, the Court today drains In re Winship (1970) of much of its vitality. Legislatures do require broad discretion in the drafting of criminal laws, but the Court surrenders to the legislative branch a significant part of its responsibility to protect the presumption of innocence. …
New York’s present homicide laws had their genesis in lingering dissatisfaction with certain aspects of the common-law framework that this Court confronted in Mullaney. Critics charged that the archaic language tended to obscure the factors of real importance in the jury’s decision. Also, only a limited range of aggravations would lead to mitigation under the common-law formula, usually only those resulting from direct provocation by the victim himself. It was thought that actors whose emotions were stirred by other forms of outrageous conduct, even conduct by someone other than the ultimate victim, also should be punished as manslaughterers rather than murderers. Moreover, the common-law formula was generally applied with rather strict objectivity. Only provocations that might cause the hypothetical reasonable man to lose control could be considered. And even provocations of that sort were inadequate to reduce the crime to manslaughter if enough time had passed for the reasonable man’s passions to cool, regardless of whether the actor’s own thermometer had registered any decline….
The American Law Institute took the lead in moving to remedy these difficulties. As part of its commendable undertaking to prepare a Model Penal Code, it endeavored to bring modern insights to bear on the law of homicide. The result was a proposal to replace “heat of passion” with the moderately broader concept of “extreme mental or emotional disturbance.” The proposal first appeared in a tentative draft published in 1959, and it was accepted by the Institute and included [in] the 1962 Proposed Official Draft.
At about this time the New York Legislature undertook the preparation of a new criminal code, and the Revised Penal Law of 1967 was the ultimate result. The new code adopted virtually word for word the ALI formula for distinguishing murder from manslaughter. Under current New York law, those who kill intentionally are guilty of murder. But there is an affirmative defense left open to a defendant: If his act was committed “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse,” the crime is reduced to manslaughter. The supposed defects of a formulation like Maine’s have been removed. Some of the rigid objectivity of the common law is relieved, since reasonableness is to be determined “from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.” The New York law also permits mitigation when emotional disturbance results from situations other than direct provocation by the victim. And the last traces of confusing archaic language have been removed. There is no mention of malice aforethought, no attempt to give a name to the state of mind that exists when extreme emotional disturbance is not present. The statute is framed in lean prose modeled after the ALI approach, giving operative descriptions of the crucial factors rather than attempting to attach the classical labels.
Despite these changes, the major factor that distinguishes murder from manslaughter in New York “extreme emotional disturbance” is undeniably the modern equivalent of “heat of passion.” The ALI drafters made this abundantly clear. They were not rejecting the notion that some of those who kill in an emotional outburst deserve lesser punishment; they were merely refining the concept to relieve some of the problems with the classical formulation. The New York drafters left no doubt about their reliance on the ALI work….
But in one important respect the New York drafters chose to parallel Maine’s practice precisely, departing markedly from the ALI recommendation. Under the Model Penal Code the prosecution must prove the absence of emotional disturbance beyond a reasonable doubt once the issue is properly raised. In New York, however, extreme emotional disturbance constitutes an affirmative defense rather than a simple defense. Consequently the defendant bears not only the burden of production on this issue; he has the burden of persuasion as well.
Mullaney held invalid Maine’s requirement that the defendant prove heat of passion. The Court today, without disavowing the unanimous holding of Mullaney, approves New York’s requirement that the defendant prove extreme emotional disturbance. The Court manages to run a constitutional boundary line through the barely visible space that separates Maine’s law from New York’s. It does so on the basis of distinctions in language that are formalistic rather than substantive.
This result is achieved by a narrowly literal parsing of the holding in Winship: “(T)he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” The only “facts” necessary to constitute a crime are said to be those that appear on the face of the statute as a part of the definition of the crime….
The test the Court today establishes allows a legislature to shift, virtually at will, the burden of persuasion with respect to any factor in a criminal case, so long as it is careful not to mention the nonexistence of that factor in the statutory language that defines the crime. The sole requirement is that any references to the factor be confined to those sections that provide for an affirmative defense….
With all respect, this type of constitutional adjudication is indefensibly formalistic. A limited but significant check on possible abuses in the criminal law now becomes an exercise in arid formalities. What Winship and Mullaney had sought to teach about the limits a free society places on its procedures to safeguard the liberty of its citizens becomes a rather simplistic lesson in statutory draftsmanship. Nothing in the Court’s opinion prevents a legislature from applying this new learning to many of the classical elements of the crimes it punishes.
For example, a state statute could pass muster under the only solid standard that appears in the Court’s opinion if it defined murder as mere physical contact between the defendant and the victim leading to the victim’s death, but then set up an affirmative defense leaving it to the defendant to prove that he acted without culpable mens rea. The State, in other words, could be relieved altogether of responsibility for proving anything regarding the defendant’s state of mind, provided only that the fact of the statute meets the Court’s drafting formulas.
To be sure, it is unlikely that legislatures will rewrite their criminal laws in this extreme form. The Court seems to think this likelihood of restraint is an added reason for limiting review largely to formalistic examination. But it is completely foreign to this Court’s responsibility for constitutional adjudication to limit the scope of judicial review because of the expectation however reasonable that legislative bodies will exercise appropriate restraint.
It would be preferable, if the Court has found reason to reject the rationale of Winship and Mullaney, simply and straightforwardly to overrule those precedents….
Notes and questions on Patterson
1. Patterson is a very difficult case. It requires you to think carefully about definitions of crimes, affirmative defenses, and allocations of burdens of proof. Murder in New York was defined as intentionally causing the death of another person, but the New York statute also included an affirmative defense. An affirmative defense can provide relief from criminal liability not because the prosecution didn’t prove the elements of the statutory offense, but on the basis of some other consideration that has been recognized as a reason not to convict and punish the defendant. Self-defense and insanity are two examples of affirmative defenses. To begin to understand how affirmative defenses work, imagine a statute that defines murder as “the intentional killing of another human being.” Now imagine a person who is threatened by an armed assailant and who shoots and kills that assailant. This person might raise a claim of self-defense rather than contest the elements of the murder statute. That is, our imaginary defendant does not deny that she intentionally killed her assailant. Rather, her affirmative defense is that, while she did intentionally kill the assailant, she did so to protect her own life from an unlawful deadly threat. You’ll study affirmative defenses in much more detail in Chapter Ten. For now, the notes below will give you helpful background on the particular affirmative defense of “provocation” that gives rise to the arguments in Patterson.
2. At common law, provocation doctrine arose as a way of distinguishing among different types of intentional killings. To common law courts, some intentional killings seemed worse than others. Premeditated, planned, cold-blooded killings seemed worse than inflamed, impulsive killings “in the heat of passion.” The person who killed in the heat of passion still killed intentionally, but, the courts decided, this person might not kill with malice. Courts held that a killing was manslaughter, not murder, if it was in response to provocation. In this regard, provocation was a partial defense rather than a complete one: a successful claim of provocation didn’t relieve the defendant of all criminal liability, but merely reduced the severity of the charges. To show provocation and reduce a murder charge to manslaughter, a defendant had to show 1) adequate provocation(something that would cause a reasonable man to become sufficiently inflamed to kill); 2) that the provocationcaused the defendant to kill the victim; and 3) no cooling-off period: the killing must have followed the provocation closely enough in time that a reasonable man would not have cooled off” or regained his composure and self-control. Courts often took a categorical approach to provocation, meaning that they recognized certain types of acts as “adequate” provocation, but excluded all other acts. Standard categories of adequate provocation included a physical attack, a threat of death or great bodily injury to the defendant or to a third party close to the defendant, such as a child; discovery of infidelity; and illegal arrest.
3. The drafters of the Model Penal Code decided to include in their proposed homicide statute a defense similar to common law provocation, but broader. The Model Penal Code provides
(1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly; or
(b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.
Model Penal Code § 210.3.
4. Now consider the New York homicide statute applied in Patterson. The New York legislature used the MPC language not in its manslaughter statute, but in its murder statute, and it explicitly characterized the consideration of extreme mental or emotional disturbance as an affirmative defense. What difference does that make, according to the Supreme Court?
5. In the dissenting opinion, Justice Powell suggests that the majority’s approach allows states to circumvent the requirements of Winshipthat the prosecution prove all elements of an offense beyond a reasonable doubt. He suggests that under the Court’s approach, a state would be permitted to define murder as “mere physical contact between the defendant and victim leading to the victim’s death.” All mental state considerations, including whether the defendant intended to kill or acted recklessly with regard to death, could be characterized as affirmative defenses. Thus the prosecution would have no burden to prove mens rea for the crime of murder. Do you agree that the majority approach leaves open this possibility? After Patterson, does Winshipremain a meaningful constraint on enforcement and adjudication decisions?
Check Your Understanding (6-2)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Recklessness and Homicide
Kentucky Rev. Stat. 507.040: Manslaughter in the second degree
(1) A person is guilty of manslaughter in the second degree when he wantonly causes the death of another person, including but not limited to situations where the death results from the person’s:
(a) Operation of a motor vehicle;
(b) Leaving a child under the age of eight (8) years in a motor vehicle under circumstances which manifest an extreme indifference to human life and which create a grave risk of death to the child, thereby causing the death of the child; or
(c) Unlawful distribution for remuneration of a Schedule I or II controlled substance when the controlled substance is the proximate cause of death.
Shawnta ROBERTSON, Appellant
v.
COMMONWEALTH of Kentucky, Appellee
Supreme Court of Kentucky
82 S.W.3d 832
Aug. 22, 2002
COOPER, Justice.
Michael Partin, a police officer employed by the city of Covington, Kentucky, was killed when he fell through an opening between the roadway and the walkway of the Clay Wade Bailey Bridge and into the Ohio River while in foot pursuit of Appellant Shawnta Robertson. Following a trial by jury in the Kenton Circuit Court, Appellant was convicted of manslaughter in the second degree for wantonly causing Partin’s death, KRS 507.040(1), and was sentenced to imprisonment for six years. The Court of Appeals affirmed, and we granted discretionary review…
At about 2:00 a.m. on January 4, 1998, Officer Brian Kane of the Kenton County Police Department attempted to arrest Appellant in Covington for possession of marijuana. Appellant broke free of Kane’s grasp and began running north on Fourth Street toward the Clay Wade Bailey Bridge which spans the Ohio River between Covington and Cincinnati, Ohio. Kane radioed for assistance and pursued Appellant on foot “at a sprint.” When Appellant reached the bridge, he vaulted over the concrete barrier between the roadway and the walkway and began running north on the walkway toward Cincinnati. Kane, who, at that point, was running on top of the concrete barrier jumped down to the walkway and continued his pursuit.
Meanwhile, Partin and two other Covington police officers, Steve Sweeney and Cody Stanley, responded to Kane’s request for assistance and arrived at the bridge almost simultaneously in three separate vehicles…. Partin’s vehicle was the first of the three police cruisers to reach the bridge. He stopped in the right northbound lane just beyond where Appellant was running on the walkway. Stanley stopped his vehicle directly behind Partin’s vehicle, and Sweeney stopped in the left northbound lane, also behind Partin’s vehicle. Sweeney and Stanley testified that they did not see either Appellant or Kane on the walkway and stopped only because Partin had done so. Both saw Partin exit his vehicle, proceed to the concrete barrier, place his left hand on the barrier, then vault over the barrier “as if he had done it a million times before,” and disappear. The concrete barrier was thirty-two inches high. The railing of the walkway was forty-three inches high. There was a forty-one-inch-wide open space between the concrete barrier and the walkway railing. Partin fell through the open space into the river ninety-four feet below. His body was recovered four months later.
[When Partin’s vehicle had arrived on the bridge, Appellant had reversed course and ran toward Kane, who ordered him to “get down.” Appellant complied and was placed under arrest for marijuana possession. After Partin’s body was recovered, appellant was charged with manslaughter.]
No one will ever know why Partin fell through the opening between the concrete barrier and the pedestrian walkway. Perhaps, he did not realize the opening was there. Perhaps, he knew it was there and miscalculated his vault. Either way, however, his death resulted from his own volitional act and not from any force employed against him by Appellant. Whether Appellant’s act of resisting arrest by unlawful flight from apprehension was a legal cause of Partin’s death requires application of the provisions of KRS 501.020(3) (definition of “wantonly”), KRS 501.020(4) (definition of “recklessly”), and KRS 501.060 (“causal relationships”).
KRS 501.020(3) defines “wantonly” as follows:
A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation…. (Emphasis added.)
KRS 501.020(4) defines “recklessly” as follows:
A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. (Emphasis added.)
Thus, wantonness is the awareness of and conscious disregard of a risk that a reasonable person in the same situation would not have disregarded, and recklessness is the failure to perceive a risk that a reasonable person in the same situation would have perceived.
KRS 501.060 provides in pertinent part:
(1) Conduct is the cause of a result when it is an antecedent without which the result in question would not have occurred.
(3) When wantonly or recklessly causing a particular result is an element of the offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of recklessness, of which he should be aware unless:
(a) The actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or
(b) The actual result involves the same kind of injury or harm as the probable result and occurs in a manner which the actor knows or should know is rendered substantially more probable by his conduct.
(4) The question of whether an actor knew or should have known the result he caused was rendered substantially more probable by his conduct is an issue of fact.
(Emphasis added.)
Obviously, Appellant’s unlawful act of resisting arrest by fleeing from apprehension was a “but for” cause of Partin’s fatal attempt to pursue him by vaulting from the roadway of the bridge to the walkway. As noted by the 1974 Commentary to KRS 501.060, the issue then becomes primarily one of mens rea.
Once an act is found to be a cause in fact of a result and a substantial factor in bringing about that result, it is recognized as the proximate cause unless another cause, independent of the first, intervenes between the first and the result. And even then the first cause is treated as the proximate cause if the harm or injury resulting from the second is deemed to have been reasonably foreseeable by the first actor.
Thus, the fact that Partin vaulted over the concrete barrier of his own volition does not exonerate Appellant if Partin’s act was either foreseen or foreseeable by Appellant as a reasonably probable result of his own unlawful act of resisting arrest by fleeing from apprehension. …[I]t is immaterial that it was Partin, as opposed to Kane or one of the other police officers, who fell from the bridge if such was a reasonably foreseeable consequence of the pursuit.
In Phillips v. Commonwealth (2000), we [upheld] the wanton murder conviction of a defendant who fired shots at an intended victim from inside a vehicle and thereby induced the intended victim to return fire and kill a passenger in the defendant’s vehicle. We held that it was reasonably foreseeable that, if shots were fired at another person from inside a vehicle, the other person would return fire in the direction of the vehicle, thus endangering the lives of its other occupants. Also illustrative is the pre-code case of Sanders v. Commonwealth (1932), which upheld the manslaughter conviction of a defendant who had threatened his wife with a deadly weapon while they were in a moving vehicle, causing her to jump from the vehicle to her death—clearly a volitional act by the victim but a probable and reasonably foreseeable consequence of the unlawful act of the defendant.
In both Phillips and Sanders, a defendant applied unlawful force against another whose volitional response to that force caused the victim’s death. The case sub judice is conceptually more similar to Lofthouse v. Commonwealth (2000), which reversed the reckless homicide conviction of a defendant who applied no force against the victim but supplied cocaine and heroin to the victim whose self-ingestion of those drugs caused his death. The result reached by the plurality opinion in Lofthouse did not turn on the fact that the victim died as a result of his own volitional act. Rather, in reversing the conviction, the opinion emphasized the absence of any evidence that the defendant knew or should have known that ingestion of those drugs under those circumstances would probably cause the victim’s death. Here, as in Lofthouse, Appellant’s mens rea, i.e., what he knew or should have known with respect to the probable consequences of his conduct, is crucial to determining the issue of his criminal liability.
Analogous to this set of facts is the case where a person pursued by the police in a high speed motor vehicle chase is held criminally liable for the death of an innocent bystander accidentally struck by a pursuing police vehicle. In People v. Schmies (Cal. 1996), the California Court of Appeal directly addressed the effect of the police officers’ conduct vis-a-vis the criminal liability of the defendant.
[T]he negligence or other fault of the officers is not a defense to the charge against defendant. The fact that the officers may have shared responsibility or fault for the accident does nothing to exonerate defendant for his role. In short, whether the officers’ conduct could be described with such labels as negligent, careless, tortious, cause for discipline, or even criminal, in an action against them, is not at issue with respect to the defendant here. In this sense the “reasonableness” of the officers’ conduct, focused upon their point of view and their blameworthiness for the death, is not relevant.
The issue with respect to defendant focuses upon his point of view, that is, whether the harm that occurred was a reasonably foreseeable consequence of his conduct at the time he acted. Since the officers’ conduct was a direct and specific response to defendant’s conduct, the claim that their conduct was a superseding cause of the accident can be supported only through a showing that their conduct was so unusual, abnormal, or extraordinary that it could not have been foreseen.
Schmies (emphasis added). Although California does not have a statutory equivalent of KRS 501.060, this common law analysis of causation is consistent with the principles embodied in our statute. Did the defendant commit an illegal act that induced the officer’s response? If so, was that response reasonably foreseeable by the defendant at the time that he acted? The fault or negligence of the officer is not determinative of the defendant’s guilt. However, the reasonableness of the officer’s response is relevant in determining whether the response was foreseeable by the defendant. The more reasonable the response, the more likely that the defendant should have foreseen it. It is immaterial that the ultimate victim was the officer, himself, as opposed to an innocent bystander.
Here, the conduct that supports Appellant’s conviction is not, as the Commonwealth suggests, his own act of vaulting over the concrete barrier. Partin was not present when that act occurred; thus, it was not reasonably foreseeable that he would have vaulted over the barrier in reliance on the fact that Appellant had done so without incident. (That analysis might have been appropriate if Officer Kane had fallen from the bridge when he followed Appellant onto the walkway.) The conduct that supports Appellant’s conviction is the continuation of his unlawful flight when he obviously knew that Partin intended to pursue him (as evidenced by the fact that when he saw Partin’s vehicle stop, he reversed course and began running in the opposite direction), and that, to do so, Partin would be required to cross the open space between the roadway and the walkway and thereby risk falling to his death. “The question of whether [Appellant] knew or should have known [that Partin’s death] was rendered substantially more probable by his conduct is an issue of fact.” KRS 501.060(4). There was sufficient evidence in this case to present that fact to a jury….
GRAVES, Justice, concurring.
… I write separately concerning Appellant’s culpability.
Whether the act of running from an officer when one has been detained, standing alone if it results in the officer’s death, would support a second-degree manslaughter conviction is a question we leave until another day. The act of vaulting the gap between the roadway and the sidewalk is sufficiently wanton to support the jury’s verdict in this case. Appellant was aware of the danger of the gap and consciously disregarded it when he jumped. Knowing he was being pursued by at least one officer on foot, Appellant had to assume any pursuing officer would attempt to follow him, also becoming susceptible to the risk. A gap of nearly 4 feet across a drop of 94 feet into moving water cannot be described as anything but a substantial unjustifiable risk. It is certainly logical for the jury to conclude that, when Appellant disregarded this risk to which he was subjecting those lawfully pursuing him, he grossly deviated from the standard of conduct that a reasonable person would observe.
[Dissenting opinion of Justice KELLER omitted.]
Notes and questions on Robertson
1. Although Kentucky’s terminology is somewhat unconventional, this case can help you learn the general distinction between recklessness and negligence in criminal law. It may be helpful to start with the Model Penal Code’s definitions of those terms, since the MPC is more representative on this particular issue. Here are the MPC definitions.
(c) Recklessly.
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.
(d) Negligently.A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
MPC § 2.02 (c)-(d).
Notice that recklessness, as defined in the Model Penal Code, requires awareness of risk: the defendant must “consciously disregard” a risk. Negligence does not require actual knowledge of risk. Instead, a negligent defendant should be aware of the risk, but instead fails to perceive it.
2. Now compare the Model Penal Code definitions with Kentucky’s definitions of the terms “wantonly” and “recklessly,” discussed within the Robertsonopinion. To act “wantonly” in Kentucky is approximately equivalent to acting “recklessly” under the MPC: a conscious disregard of a (known) substantial and unjustifiable risk. And to act “recklessly” in Kentucky is approximately equivalent to acting “negligently” under the MPC: a failure to perceive a substantial and unjustifiable risk. The variations in criminal law terminology by jurisdiction can be confusing, but it helps to let go of the expectation of consistency! It’s always wise to check your own jurisdiction’s definitions of key terms. It’s also helpful to be aware of usual practice. The Model Penal Code’s definition of recklessness as conscious disregard of a substantial and unjustifiable risk is fairly common, and Kentucky’s approach is unusual.
3. Shawnta Robertson’s appeal does not focus directly on evidence of his mental state, but rather on the issue of causation. Like many jurisdictions, though, Kentucky links causation to mental states. KRS 501.060, quoted within the court’s opinion, sets forth causation requirements of Kentucky law for crimes with a mens rea of either “wantonly” or “recklessly.” Try to articulate clearly the defendant’s argument about causation here, and the prosecution’s response. Which argument seems more compelling to you?
4. Beyond the law, we sometimes think of cause-and-effect relationships as scientific or empirical questions: does smoking cause lung cancer? Does human behavior cause global warming? It is important to see that in criminal law, causation analysis often involves normative judgments about whether a defendant should be held responsible for an effect that is in some way linked to the defendant’s actions. A dissenting opinion in Robertson, not included above, emphasized this moral dimension to causation analysis. But-for causation can be interpreted very broadly, the dissent noted; a person who chooses to bear a child is a but-for cause of that child’s later death, since but-for the birth the death could not have occurred. “Legal cause” or “proximate cause” is a device to narrow legal liability based on judgments of a particular actor’s culpability or blameworthiness. As the dissent explained,
KRS 501.060 represents a legislative policy determination that “[w]hen the requirement of ‘proximate causation’ dissociates the actor’s conduct from a result of which it is a but-for cause, … the actor’s culpability with respect to the result … is such that it would be unjust to permit the result to influence his liability or the gravity of his offense.” In other words, “legal causation,” … now conceptualized by KRS 501.060 as an issue of mens rea or culpability, nevertheless operates to exclude criminal liability in cases where the defendant would otherwise have committed an offense, but “common sense notions of responsibility for the occurrence of results” dictate that the imposition of criminal liability is inappropriate.
Robertson, 82 S.W.3d 832 at 844 (Keller, J., dissenting).
5. Suppose that while police officers were chasing Robertson, Robertson (rather than one of the officers) had fallen off the bridge and drowned. Would the officers then be liable for manslaughter of Robertson? It’s unlikely. Doctrines of “law enforcement justification” empower police officers to engage in many actions that would otherwise violate criminal statutes. “State and federal law generally prohibit assault, battery, use of deadly force, … damage to property, weapons possession, and so forth; all of these prohibitions contain exceptions for police officers on terms not applicable to ordinary citizens.” Stokes v. City of Chicago, 744 F. Supp. 183, 188 n. 4 (N.D. Ill. 1990). Although law enforcement justifications set ostensible limits to police use of force and other conduct that would otherwise violate criminal laws, the question whether police have exceeded those limits is often controversial. As you are no doubt aware, many police killings of unarmed suspects are not prosecuted, even when some observers find the use of deadly force to be unwarranted. For additional discussion of these cases, see the section entitled “When Killing Isn’t Criminal” later in this chapter. For now, notice that an inquiry into the justifiability of risky conduct is built into Kentucky’s definition of “wantonly.” To act wantonly is to disregard “a substantial and unjustifiable risk.” Even if Robertson had fallen and drowned, a prosecutor deciding whether criminal charges are appropriate might conclude that the risks that police took in chasing this suspect were justifiable ones.
6. Across the Kansas, New York, and Kentucky homicide statutes you’ve seen so far, there are offenses of first degree murder, second degree murder, first degree manslaughter, and second degree manslaughter. States that retain the death penalty often have a separate offense of “capital murder.” Pennsylvania and Florida also each define a crime of third degree murder, and many states define still other homicide offenses, such as vehicular homicide or criminally negligent homicide. None of these terms has a universal definition that applies across all jurisdictions; each state decides how to divide homicide into more narrowly defined offenses. But it is useful to notice that each state does divide criminal homicides into categories, with “murder” typically being a more severe offense that carries more severe penalties than “manslaughter,” and with a “first degree” offense typically carrying more severe penalty than a second degree (or third degree) one. What are the reasons that a state might want to divide homicide into multiple, more narrowly defined offenses? What aspects of a killing should be used to distinguish more severe offense from less severe ones, in your view?
7. As noted earlier in this chapter, the actus reus of most homicide offenses is the same – causing the death of a human being. The different types of homicide listed in the previous note are usually distinguished by mens rea standards. A defendant’s state of mind can be difficult to ascertain or “prove,” as we have seen; mental state elements are frequently established by arguments from circumstantial evidence. When deciding which homicide offense to charge, prosecutors could seek a conviction for the most severe offense that they think the evidence warrants, or they could propose a plea to a lesser homicide offense. It’s important to see that prosecutors have choices; the proliferation of different types of homicide is another source of prosecutorial discretion. And as you have seen in other contexts, the exercise of discretion often produces patterns of racial disparities. For example, in both capital murder cases and non-capital homicide cases, empirical researchers have found that black defendants who kill white victims are likely to be charged with a more severe homicide offense than other defendant-victim racial combinations. See, e.g., Yoav Sapir, Neither Intent Nor Impact: A Critique of the Racially Based Selective Prosecution Jurisprudence and a Reform Proposal , 19 Harv. BlackLetter L.J. 130-131 (2003).
Check Your Understanding (6-3)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Negligence and Homicide
Massachusetts G.L. c. 90, 24G(b):
Whoever, upon any way or in any place to which the public has a right of access or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of .08 or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances…, or whoever operates a motor vehicle negligently so that the lives or safety of the public might be endangered and by any such operation causes the death of another person, shall be guilty of homicide by a motor vehicle and shall be punished by imprisonment in a jail or house of correction for not less than 30 days nor more than 2 ½ years, or by a fine of not less than \$300 nor more than \$3,000 dollars, or both.
Mass. G.L. c. 265, 13:
Whoever commits manslaughter shall, except as hereinafter provided, be punished by imprisonment in the state prison for not more than twenty years or by a fine of not more than one thousand dollars and imprisonment in jail or a house of correction for not more than two and one half years.
COMMONWEALTH
v.
Sandra CARLSON
Supreme Judicial Court of Massachusetts, Worcester
849 N.E.2d 790
Decided June 21, 2006
Opinion by GREANEY, J.
We transferred this case here on our own motion to consider the scope of criminal liability for the negligent operation of a motor vehicle that results, in the circumstances described below, in death. A jury … convicted the defendant on a complaint charging motor vehicle homicide by negligent operation. The evidence at trial demonstrated that Carol Suprenant (victim) was hospitalized with chest and lung injuries suffered as a result of an accident caused by the defendant’s negligent operation of an automobile and died of respiratory failure four days later after her doctors, at her request, removed her from a ventilator that allowed her to breathe and might have ensured her survival. The defendant appeals from her conviction, challenging (as she did at trial) the sufficiency of the evidence proving causation and claiming (for the first time on appeal) that the trial judge’s instructions to the jury on the concept of superseding causes were inadequate. We affirm the conviction.
The jury could have found the following facts. On July 4, 2002, the victim and her husband, Robert Suprenant, left their home in Spencer to attend a cookout… At about noon, the Suprenants were traveling south on Mechanic Street and had just entered the intersection of Mechanic and Chestnut Streets, when their automobile was struck on the passenger side by an automobile traveling east on Chestnut Street operated by the defendant. The force of impact pushed the Suprenant’s automobile a distance of approximately fifteen to twenty feet, across the road, over a sidewalk, and into a chain link fence. Traffic entering the intersection from the defendant’s direction was controlled by both a stop sign and blinking red light. A jury could infer that the defendant had failed to stop (or yield the right of way) at the intersection and, thus, was negligent. The victim was transferred from the accident scene by emergency medical personnel to [a hospital].
As a result of the accident, the victim suffered multiple chest wall fractures, including fractures of the ribs and sternum and a lung contusion. The victim had suffered for several years prior to the accident from chronic obstructive pulmonary disease (COPD), a condition which makes it difficult to breathe and, thus, to supply oxygen to the bloodstream, and had required the use of an oxygen tank in her home to assist in her breathing.[1] The trauma to her chest compromised her ability to breathe as she had before the accident, to the point where she could no longer oxygenate her blood by normal breathing. That night in the intensive care unit, the victim was intubated and placed on a ventilator. The next morning, the doctors removed the victim from the ventilator, and she was transferred from the intensive care unit to a medical floor in the hospital.
Over the next few days, the victim’s breathing difficulties increased. Three doctors separately advised the victim of the need to reintubate her and place her again on a ventilator in order to assist her breathing. At first the victim, who had in the past repeatedly told her daughter-in-law (and health proxy) that she never wanted to be kept alive by a ventilator, refused permission for the doctors to do so. After speaking with family members and her doctors, however, the victim acquiesced and allowed herself to be reintubated, at least temporarily, in order to determine if her health would improve.
The next morning the victim’s kidneys began to fail, and doctors advised the victim that her worsening condition would require dialysis. At this point, the victim stated that she no longer wished to be attached to a ventilator. Two doctors on the medical staff of the hospital met separately with the victim to discuss the nature of the circumstances facing her and the probable consequences of forgoing mechanical ventilation. The victim’s personal physician also spoke with her at great length about her decision and encouraged her to remain on the breathing tube and ventilator to allow her situation time to improve. The victim understood (a jury could infer) that her death was probable if she did not allow intubation and that, conversely, her injuries were potentially survivable if she remained on the ventilator. The victim was adamant that she did not want to be intubated. On July 8, she was taken off the ventilator and the intubation tube was removed. She died a few hours later from respiratory failure.
At trial one doctor testified that, if the accident had not happened, the victim probably would not have needed a ventilator and could have continued being on home oxygen in her usual fragile state of health, but that the chest injuries suffered in the accident “tipped the scales against her.” He also opined that the victim’s decision not to be intubated “likely played a role in her death.” Another doctor stated his opinion “to a reasonable degree of medical certainty” that the victim would have survived her injuries if she had agreed to mechanical ventilatory support, and might even have returned to the state she was in before the accident, but conceded as well that the victim might have required “chronic and continuous ventilatory support.” The victim’s daughter-in-law assessed the situation as follows: “We all knew that it was a possibility that she might not make it, but [the doctors] couldn’t give us a guarantee that she would make it without … hav[ing] to be on a [ventilator] for the rest of her life, and she didn’t want to live like that, and we couldn’t force her to do that.” The victim’s primary care physician testified, “I do think her mind was made up.”
The judge denied the defendant’s motions for the entry of a required finding of not guilty presented at the close of the Commonwealth’s case and at the close of all the evidence. The defendant argues that the Commonwealth’s proof was insufficient to sustain the conviction because no rational jury could have determined, beyond a reasonable doubt, that the victim’s death from respiratory failure was proximately caused by the defendant’s negligence.[2] The defendant asserts that the victim’s death was a direct result of her independent decision not to undertake medical procedures that could be considered appropriate for a person in her condition and that would, in all probability, have allowed her to survive the accident. The defendant concedes that the victim had the right to make an informed decision to forgo life support, but argues that the victim’s choice broke the chain of causation and relieved the defendant of criminal responsibility for the victim’s death. We disagree.
… The standard of causation under G.L. c. 90, § 24G, is the same as that employed in tort law. …Conduct is a proximate cause of death if the conduct, “by the natural and continuous sequence of events, causes the death and without which the death would not have occurred.” There is no question that the defendant’s negligent failure to stop, or yield the right of way, at the intersection (for which the defendant accepts responsibility in this appeal) set in motion a chain of events that resulted in the victim’s death. The victim’s injuries from the accident exacerbated serious preexisting health problems and required her to be intubated and placed on the ventilator. Her ultimate decision to be removed from life support was not an independent occurrence but the final step in the continuous sequence of events that began with the defendant’s negligent operation of her automobile. “But for” the negligence, the accident would not have occurred, and the victim would not have been forced into the position of having to make what was, in retrospect, a true life-or-death decision.
The general rule is that intervening conduct of a third party will relieve a defendant of culpability for antecedent negligence only if such an intervening response was not reasonably foreseeable…. “This is just another way of saying that an intervening act of a third party that was not reasonably foreseeable in the circumstances would prevent the victim’s death from following naturally and continuously from the defendant’s conduct.” Commonwealth v. Askew (1989). Whether an intervening act was reasonably foreseeable and, thus, followed naturally from the defendant’s conduct, or unforeseeable and, thus, broke the chain of causation as matter of law, is a question of fact for the jury to decide based on an assessment of the circumstances. See Restatement (Second) of Torts § 453 comment b (1965) (if either facts or reasonable foreseeability of intervening act are subject to reasonable difference of opinion, question of proximate cause must go to jury).
Here, the victim’s choice was between invasive life support that might have assured her survival, but could also have led to a life of ventilator dependence (and, we may assume, continued pain and suffering), or acceptance of “comfort measures” only. The record shows that the victim was intelligent and coherent at all times. She had an absolute right to make the decision that she did. Modern medicine can sometimes prolong or sustain life by way of invasive procedures, but it is common knowledge that some patients will refuse to consent to such procedures. The jury were warranted in determining, in the circumstances of this case, that the victim’s decision to forgo invasive life support was reasonably foreseeable.[3]
The defendant poses the question: “In the realm of crimes of negligence, should the tort concept of ‘you take your victim as you find him’ apply … even though, by pure chance and coincidence, it has the effect of turning an act of simple negligence into a serious crime?” The answer to this question is “yes.”
Through the enactment of G.L. c. 90, § 24G (b ), the Legislature has decided, as matter of social policy, to deter acts of reckless driving by making the killing of another human being by means of negligent operation of a motor vehicle an offense punishable by up to two and one-half years’ imprisonment and a \$3,000 fine. Prior to the statute’s enactment, prosecutors presented with facts like those before us had to choose between prosecution of a misdemeanor, such as driving so as to endanger, G.L. c. 90, § 24(2) (a), or of the far more serious crime of involuntary manslaughter, G.L. c. 265, § 13, which carries a maximum penalty of twenty years’ imprisonment. We have concluded that the Legislature intended the statute “to provide a middle ground between the felony of manslaughter and the misdemeanor of driving so as to endanger.” A finding of ordinary negligence is sufficient to establish a violation of the statute. The defendant’s insistence that this standard is not fair, or leaves “nothing to soften the blow,” is irrelevant.
The defendant’s suggestion that she should not be held accountable for the victim’s death, because the same injuries would have been minor if inflicted on a healthy young person, has no merit. Our long-standing rule in Massachusetts, in criminal law as well as in tort, is that “the wrongdoer takes the victim as he or she finds him.”
We now consider the defendant’s argument that the judge’s instructions to the jury on causation were so inadequate and confusing as to require a new trial. The defendant asserted no challenge to the judge’s instructions at trial. She is entitled to relief only if she demonstrates error in the instructions that created a substantial risk of a miscarriage of justice, namely, “a substantial danger that the jury was misled by [an] erroneous instruction, and that the instruction may have materially influenced their appraisal of the [evidence].”
The judge properly charged the jury on the elements of negligent motor vehicle homicide. He advised the jury that there may be more than one cause of a person’s death, but that the Commonwealth is required to prove beyond a reasonable doubt that the defendant “directly and substantially set in motion a chain of events that produced the death in a natural and continuous sequence,” and that the death would not have occurred without the defendant’s actions. This is a correct statement of the law.
The judge instructed the jury on the law of intervening events and superseding causes, as set forth in the margin,[4] in accordance with what has been said in this opinion. The judge emphasized that the jury must acquit the defendant “if the death would not have occurred without the intervention of another person or event, and a reasonable person in the same circumstances would not have foreseen the likely possibility of such a result.” There was no possibility that the jury did not understand that they must find beyond a reasonable doubt that the defendant’s negligence directly set in motion a continuous chain of events that produced the death, and that they must acquit the defendant if the death would not have occurred without the intervention of some other person or event that was not reasonably foreseeable. The judge’s instructions focused the jury’s attention on the issue of causation and correctly left the issue of foreseeability to the jury.
…The judgment of conviction is affirmed.
So ordered.
Notes and questions on Carlson
1. Carlson, like the case before it, concerns causation, and the link between causation and the defendant’s mental state. This appellate opinion is focused on the question whether there is adequate evidence that Sandra Carlson caused the victim’s death. As the court points out in footnote 4, at trial the defendant raised two separate, alternative arguments: that her conduct was not negligent, and that her conduct (even if negligent) did not cause the victim’s death. But only the causation issue was raised on appeal, for reasons not made clear in the appellate opinion. The court does not explain how negligence is defined in Massachusetts law, but it does identify the relevant evidence of negligence: Carlson failed to stop at a stop sign (or yield the right of way when she was obligated to do so).
2. Assuming Carlson was in fact negligent, the question becomes whether her negligent driving was the cause of Carol Suprenant’s death. Carlson’s argument on appeal focuses on proximate cause and, more specifically, the concept of an intervening or superceding cause. What is “proximate cause”? That term is often used to express the idea that the defendant’s conduct must be sufficiently closely related to the result in question, or sufficiently influential on that result, to merit imposing liability on the defendant. But what does it mean for conduct to be “sufficiently” related to a result? Proximate cause analysis has frequently involved normative, subjective, and hard-to-express judgments about the defendant’s culpability or blameworthiness. As the Carlsoncourt explained in a footnote not included above,
The term “proximate cause” has fallen into disfavor. Drafters of the Restatement (Third) of Torts: Liability for Physical Harm § 574 (Proposed Final Draft No. 1, 2005), make clear their dislike for the term as “an especially poor one to describe the idea to which it is connected,” and have opted instead to use “scope of liability” as the umbrella term for the concept that, for liability to be imposed, the harm that occurred must be one that results from the hazards that made the defendant’s conduct tortious. We continue to use the term as it has been used in the past, as shorthand for the principle that an actor’s liability is limited to those physical harms that are within the foreseeable risks of the tortious conduct…. We thus leave for another day, in a case where the matter is appropriately briefed, the issue whether we should replace the term “proximate cause,” as defined in our case law, with the term “scope of liability,” as defined in the proposed Restatement (Third) of Torts, and the principles accompanying “scope of liability” set forth therein. The judge did not use the term “proximate cause” while instructing the jury.
Carlson, 849 N.E.2d 790, 794 n. 5 (2006). Does the term “scope of liability” clarify matters? Or does it simply restate the underlying (and inevitably normative, subjective) question – do we think this defendant’s actions are sufficiently linked to the bad result to make it appropriate to punish this defendant?
3. Whether a jurisdiction embraces the term “proximate cause” or not, it is fairly standard to consider intervening or superceding factors as part of causation analysis. The idea is often expressed in the metaphor used by Sandra Carlson here: certain interventions will “break the chain” of causation, or sever the link between the defendant’s conduct and the relevant result. Here, Carlson argued that Carol Suprenant’s rejection of medical treatment broke the chain of causation, separating Carlson’s negligent driving from Suprenant’s eventual death. Why does the Massachusetts court reject this argument?
4. Back to negligence: we use appellate cases as case studies, and the facts of Carlsonmake it a great case study on issues of causation. However, because Massachusetts uses tort-law principles of negligence for its motor vehicle homicide statute, Carlsonmight leave you confused about the relationship between negligence in tort law and negligence in criminal law. Most jurisdictions (even if not Massachusetts) do distinguish between civil negligence (the tort standard) and criminal negligence. Here’s one way to think about the distinction. In tort, negligence is most often a description of someone’s conduct or actions: this person had a duty of care; he did not act in a way consistent with that duty; his failure to exercise some duty of care led to some bad result. Negligence in tort is not primarily about a person’s brain—it’s about what he did or didn’t do, rather than about what he was or wasn’t thinking. In criminal law, in contrast, negligence is most often a description of a mental state: it’s what you might call culpable obliviousness. To be sure, to have a crime, the mental state of negligence needs to go along with conduct – you need both mens rea and actus reus to get the crime. But when criminal law uses the word negligence, it’s asking you to think about the person’s state of mind. And usually, criminal negligence is not simply a state of mind of forgetfulness or unawareness, but a state of mind that can be characterized as a “gross deviation” from a reasonable person’s level of awareness or attentiveness. For a typical definition of criminal negligence, look again at Model Penal Code § 2.02(d), reprinted above after Robertson.
When Killing Isn’t Criminal
Sometimes, killing another person is not classified as a criminal act, even if the killing is intentional. An affirmative defense of self-defense or insanity could relieve the person who kills from criminal liability, as mentioned briefly above in the notes after Patterson, and as discussed in greater depth in Chapter Ten. Similarly, principles of law enforcement justification such as those discussed in the notes after Robertson often shield police officers from criminal liability for civilian deaths. Jurisdictions have some leeway in defining the scope of self-defense, insanity, or a law enforcement justification. The guidelines for police use of force are somewhat general, to the frustration of many critics: states often empower police to use as much force (including as much deadly force) as is “reasonable.”
Keep in mind that whether a given killing meets the legal standard for self-defense, insanity, or a law enforcement justification is a question that is not always subject to formal adjudication. If prosecutors simply decline to bring homicide charges (or any other type of criminal charge, for that matter), there is little that other parties can do to challenge that decision. On this point, you may wish to look again at Inmates of Attica v. Rockefeller in Chapter Three. Recall that prison officials killed more than 30 prisoners after a disturbance at a state prison. Despite allegations that at least some of the killings were retaliatory rather than defensive, state and federal prosecutors declined to charge the officials with homicide or other criminal offenses. The Second Circuit rejected the surviving prisoners’ efforts to compel prosecution.
Sexual Assault
New Jersey Stat. Ann. 2C:14–2c(1):
c. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:
(1) The actor uses physical force or coercion, but the victim does not sustain severe personal injury;
(2) The victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated;
(3) The victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor’s legal, professional or occupational status;
(4) The victim is at least 16 but less than 18 years old and:
(a) The actor is related to the victim by blood or affinity to the third degree; or
(b) The actor has supervisory or disciplinary power over the victim; or
(c) The actor is a foster parent, a guardian, or stands in loco parentis within the household;
(5) The victim is at least 13 but less than 16 years old and the actor is at least 4 years older than the victim.
Sexual assault is a crime of the second degree.
STATE of New Jersey In the Interest of M.T.S.
Supreme Court of New Jersey
609 A.2d 1266
Decided July 30, 1992
The opinion of the Court was delivered by HANDLER, J.
Under New Jersey law a person who commits an act of sexual penetration using physical force or coercion is guilty of second-degree sexual assault. The sexual assault statute does not define the words “physical force.” The question posed by this appeal is whether the element of “physical force” is met simply by an act of non-consensual penetration involving no more force than necessary to accomplish that result.
That issue is presented in the context of what is often referred to as “acquaintance rape.” The record in the case discloses that the juvenile, a seventeen-year-old boy, engaged in consensual kissing and heavy petting with a fifteen-year-old girl and thereafter engaged in actual sexual penetration of the girl to which she had not consented. There was no evidence or suggestion that the juvenile used any unusual or extra force or threats to accomplish the act of penetration.
The trial court determined that the juvenile was delinquent for committing a sexual assault. The Appellate Division reversed…. We granted the State’s petition for certification.
I
The issues in this case are perplexing and controversial. We must explain the role of force in the contemporary crime of sexual assault and then define its essential features. We then must consider what evidence is probative to establish the commission of a sexual assault. The factual circumstances of this case expose the complexity and sensitivity of those issues and underscore the analytic difficulty of those seemingly-straightforward legal questions.
On Monday, May 21, 1990, fifteen-year-old C.G. was living with her mother, her three siblings, and several other people, including M.T.S. and his girlfriend. A total of ten people resided in the three-bedroom town-home at the time of the incident. M.T.S., then age seventeen, was temporarily residing at the home with the permission of C.G.’s mother; he slept downstairs on a couch. C.G. had her own room on the second floor. At approximately 11:30 p.m. on May 21, C.G. went upstairs to sleep after having watched television with her mother, M.T.S., and his girlfriend. When C.G. went to bed, she was wearing underpants, a bra, shorts, and a shirt. At trial, C.G. and M.T.S. offered very different accounts concerning the nature of their relationship and the events that occurred after C.G. had gone upstairs. The trial court did not credit fully either teenager’s testimony.
C.G. stated that earlier in the day, M.T.S. had told her three or four times that he “was going to make a surprise visit up in [her] bedroom.” She said that she had not taken M.T.S. seriously and considered his comments a joke because he frequently teased her. She testified that M.T.S. had attempted to kiss her on numerous other occasions and at least once had attempted to put his hands inside of her pants, but that she had rejected all of his previous advances.
C.G. testified that on May 22, at approximately 1:30 a.m., she awoke to use the bathroom. As she was getting out of bed, she said, she saw M.T.S., fully clothed, standing in her doorway. According to C.G., M.T.S. then said that “he was going to tease [her] a little bit.” C.G. testified that she “didn’t think anything of it”; she walked past him, used the bathroom, and then returned to bed, falling into a “heavy” sleep within fifteen minutes. The next event C.G. claimed to recall of that morning was waking up with M.T.S. on top of her, her underpants and shorts removed. She said “his penis was into [her] vagina.” As soon as C.G. realized what had happened, she said, she immediately slapped M.T.S. once in the face, then “told him to get off [her], and get out.” She did not scream or cry out. She testified that M.T.S. complied in less than one minute after being struck; according to C.G., “he jumped right off of [her].” She said she did not know how long M.T.S. had been inside of her before she awoke.
C.G. said that after M.T.S. left the room, she “fell asleep crying” because “[she] couldn’t believe that he did what he did to [her].” She explained that she did not immediately tell her mother or anyone else in the house of the events of that morning because she was “scared and in shock.” According to C.G., M.T.S. engaged in intercourse with her “without [her] wanting it or telling him to come up [to her bedroom].” By her own account, C.G. was not otherwise harmed by M.T.S.
At about 7:00 a.m., C.G. went downstairs and told her mother about her encounter with M.T.S. earlier in the morning and said that they would have to “get [him] out of the house.” While M.T.S. was out on an errand, C.G.’s mother gathered his clothes and put them outside in his car; when he returned, he was told that “[he] better not even get near the house.” C.G. and her mother then filed a complaint with the police.
According to M.T.S., he and C.G. had been good friends for a long time, and their relationship “kept leading on to more and more.” He had been living at C.G.’s home for about five days before the incident occurred; he testified that during the three days preceding the incident they had been “kissing and necking” and had discussed having sexual intercourse. The first time M.T.S. kissed C.G., he said, she “didn’t want him to, but she did after that.” He said C.G. repeatedly had encouraged him to “make a surprise visit up in her room.”
M.T.S. testified that at exactly 1:15 a.m. on May 22, he entered C.G.’s bedroom as she was walking to the bathroom. He said C.G. soon returned from the bathroom, and the two began “kissing and all,” eventually moving to the bed. Once they were in bed, he said, they undressed each other and continued to kiss and touch for about five minutes. M.T.S. and C.G. proceeded to engage in sexual intercourse. According to M.T.S., who was on top of C.G., he “stuck it in” and “did it [thrust] three times, and then the fourth time [he] stuck it in, that’s when [she] pulled [him] off of her.” M.T.S. said that as C.G. pushed him off, she said “stop, get off,” and he “hopped off right away.”
According to M.T.S., after about one minute, he asked C.G. what was wrong; she replied with a back-hand to his face. He recalled asking C.G. what was wrong a second time, and her replying, “how can you take advantage of me or something like that.” M.T.S. said that he proceeded to get dressed and told C.G. to calm down, but that she then told him to get away from her and began to cry. Before leaving the room, he told C.G., “I’m leaving … I’m going with my real girlfriend, don’t talk to me … I don’t want nothing to do with you or anything, stay out of my life … don’t tell anybody about this … it would just screw everything up.” He then walked downstairs and went to sleep.
On May 23, 1990, M.T.S. was charged with conduct that if engaged in by an adult would constitute second-degree sexual assault of the victim, contrary to N.J.S.A. 2C:14–2c(1)….
Following a two-day trial on the sexual assault charge, M.T.S. was adjudicated delinquent. After reviewing the testimony, the court concluded that the victim had consented to a session of kissing and heavy petting with M.T.S. The trial court did not find that C.G. had been sleeping at the time of penetration, but nevertheless found that she had not consented to the actual sexual act. Accordingly, the court concluded that the State had proven second-degree sexual assault beyond a reasonable doubt. On appeal, following the imposition of suspended sentences on the sexual assault and the other remaining charges, the Appellate Division determined that the absence of force beyond that involved in the act of sexual penetration precluded a finding of second-degree sexual assault. It therefore reversed the juvenile’s adjudication of delinquency for that offense.
II
The New Jersey Code of Criminal Justice, N.J.S.A. 2C:14–2c(1), defines “sexual assault” as the commission “of sexual penetration” “with another person” with the use of “physical force or coercion.” An unconstrained reading of the statutory language indicates that both the act of “sexual penetration” and the use of “physical force or coercion” are separate and distinct elements of the offense. Neither the definitions section of 2C:14 nor the remainder of the Code of Criminal Justice provides assistance in interpreting the words “physical force.” The initial inquiry is, therefore, whether the statutory words are unambiguous on their face and can be understood and applied in accordance with their plain meaning. The answer to that inquiry is revealed by the conflicting decisions of the lower courts and the arguments of the opposing parties. The trial court held that “physical force” had been established by the sexual penetration of the victim without her consent. The Appellate Division believed that the statute requires some amount of force more than that necessary to accomplish penetration.
The parties offer two alternative understandings of the concept of “physical force” as it is used in the statute. The State would read “physical force” to entail any amount of sexual touching brought about involuntarily. A showing of sexual penetration coupled with a lack of consent would satisfy the elements of the statute. The Public Defender urges an interpretation of “physical force” to mean force “used to overcome lack of consent.” That definition equates force with violence and leads to the conclusion that sexual assault requires the application of some amount of force in addition to the act of penetration.
…Resort to common experience or understanding does not yield a conclusive meaning [of the term force]….
Thus, as evidenced by the disagreements among the lower courts and the parties, and the variety of possible usages, the statutory words “physical force” do not evoke a single meaning that is obvious and plain. Hence, we must pursue avenues of construction in order to ascertain the meaning of that statutory language. Those avenues are well charted. When a statute is open to conflicting interpretations, the court seeks the underlying intent of the legislature, relying on legislative history and the contemporary context of the statute. With respect to a law, like the sexual assault statute, that “alters or amends the previous law or creates or abolishes types of actions, it is important, in discovering the legislative intent, to ascertain the old law, the mischief and the proposed remedy.” We also remain mindful of the basic tenet of statutory construction that penal statutes are to be strictly construed in favor of the accused. Nevertheless, the construction must conform to the intent of the Legislature.
…. The origin of the rape statute that the current statutory offense of sexual assault replaced can be traced to the English common law. Under the common law, rape was defined as “carnal knowledge of a woman against her will.” Cynthia A. Wicktom, Note, Focusing on the Offender’s Forceful Conduct: A Proposal for the Redefinition of Rape Laws, 56 Geo.Wash.L.Rev. 399, 401 (1988) (Offender’s Forceful Conduct ). American jurisdictions generally adopted the English view, but over time states added the requirement that the carnal knowledge have been forcible, apparently in order to prove that the act was against the victim’s will. As of 1796, New Jersey statutory law defined rape as “carnal knowledge of a woman, forcibly and against her will.” Crimes Act of March 18, 1796 § 8, [1821] N.J.Rev.Laws (Pennington) 246. Those three elements of rape—carnal knowledge, forcibly, and against her will—remained the essential elements of the crime until 1979. Leigh Bienen, Rape III—National Developments in Rape Reform Legislation, 6 Women’s Rts.L.Rep. 170, 207 (1981) (Bienen, Rape III ).
Under traditional rape law, in order to prove that a rape had occurred, the state had to show both that force had been used and that the penetration had been against the woman’s will. Force was identified and determined not as an independent factor but in relation to the response of the victim, which in turn implicated the victim’s own state of mind. “Thus, the perpetrator’s use of force became criminal only if the victim’s state of mind met the statutory requirement. The perpetrator could use all the force imaginable and no crime would be committed if the state could not prove additionally that the victim did not consent.” National Institute of Law Enforcement and Criminal Justice, Forcible Rape—An Analysis of Legal Issues 5 (March 1978). Although the terms “non-consent” and “against her will” were often treated as equivalent, under the traditional definition of rape, both formulations squarely placed on the victim the burden of proof and of action. Effectively, a woman who was above the age of consent had actively and affirmatively to withdraw that consent for the intercourse to be against her will….
The presence or absence of consent often turned on credibility. To demonstrate that the victim had not consented to the intercourse, and also that sufficient force had been used to accomplish the rape, the state had to prove that the victim had resisted. According to the oft-quoted Lord Hale, to be deemed a credible witness, a woman had to be of good fame, disclose the injury immediately, suffer signs of injury, and cry out for help. 1 Matthew Hale, History of the Pleas of the Crown 633 (1st ed. 1847). Courts and commentators historically distrusted the testimony of victims, “assuming that women lie about their lack of consent for various reasons: to blackmail men, to explain the discovery of a consensual affair, or because of psychological illness.” Evidence of resistance was viewed as a solution to the credibility problem; it was the “outward manifestation of nonconsent, [a] device for determining whether a woman actually gave consent.” Note, The Resistance Standard in Rape Legislation, 18 Stan.L.Rev. 680, 689 (1966).
The resistance requirement had a profound effect on the kind of conduct that could be deemed criminal and on the type of evidence needed to establish the crime. Courts assumed that any woman who was forced to have intercourse against her will necessarily would resist to the extent of her ability. People v. Barnes (Cal. 1986) (observing that “[h]istorically, it was considered inconceivable that a woman who truly did not consent to sexual intercourse would not meet force with force”). In many jurisdictions the requirement was that the woman have resisted to the utmost. “Rape is not committed unless the woman oppose the man to the utmost limit of her power.” People v. Carey (N.Y.1918). “[A] mere tactical surrender in the face of an assumed superior physical force is not enough. Where the penalty for the defendant may be supreme, so must resistance be unto the uttermost.” Moss v. State (Miss. 1950). Other states followed a “reasonableness” standard, while some required only sufficient resistance to make non-consent reasonably manifest.
At least by the 1960s courts in New Jersey followed a standard for establishing resistance that was somewhat less drastic than the traditional rule. “The fact that a victim finally submits does not necessarily imply that she consented. Submission to a compelling force, or as a result of being put in fear, is not consent.” State v. Harris (N.J. 1961). Nonetheless, the “resistance” requirement remained an essential feature of New Jersey rape law. Thus, in 1965 the Appellate Division stated: “[W]e have rejected the former test that a woman must resist ‘to the uttermost.’ We only require that she resist as much as she possibly can under the circumstances.”
The judicial interpretation of the pre-reform rape law in New Jersey, with its insistence on resistance by the victim, greatly minimized the importance of the forcible and assaultive aspect of the defendant’s conduct. Rape prosecutions turned then not so much on the forcible or assaultive character of the defendant’s actions as on the nature of the victim’s response. Note, Recent Statutory Developments in the Definition of Forcible Rape, 61 Va.L.Rev. 1500, 1505–07 (1975) (Definition of Forcible Rape). “[I]f a woman assaulted is physically and mentally able to resist, is not terrified by threats, and is not in a place and position that resistance would have been useless, it must be shown that she did, in fact, resist the assault.” State v. Terry. Under the pre-reform law, the resistance offered had to be “in good faith and without pretense, with an active determination to prevent the violation of her person, and must not be merely passive and perfunctory.” That the law put the rape victim on trial was clear.
The resistance requirement had another untoward influence on traditional rape law. Resistance was necessary not only to prove non-consent but also to demonstrate that the force used by the defendant had been sufficient to overcome the victim’s will. The amount of force used by the defendant was assessed in relation to the resistance of the victim. See, e.g., Tex. Penal Code Ann. § 21.02 (1974) (repealed 1983) (stating that “the amount of force necessary to negate consent is a relative matter to be judged under all the circumstances, the most important of which is the resistance of the female”). In New Jersey the amount of force necessary to establish rape was characterized as “the degree of force sufficient to overcome any resistance that had been put up by the female.” State v. Terry. Resistance, often demonstrated by torn clothing and blood, was a sign that the defendant had used significant force to accomplish the sexual intercourse. Thus, if the defendant forced himself on a woman, it was her responsibility to fight back, because force was measured in relation to the resistance she put forward. Only if she resisted, causing him to use more force than was necessary to achieve penetration, would his conduct be criminalized. Indeed, the significance of resistance as the proxy for force is illustrated by cases in which victims were unable to resist; in such cases the force incident to penetration was deemed sufficient to establish the “force” element of the offense.
The importance of resistance as an evidentiary requirement set the law of rape apart from other common-law crimes, particularly in the eyes of those who advocated reform of rape law in the 1970s. See, e.g., Note, The Victim in a Forcible Rape Case: A Feminist View, 11 Am.Crim.L.Rev. 335, 346 (1973). However, the resistance requirement was not the only special rule applied in the rape context. A host of evidentiary rules and standards of proof distinguished the legal treatment of rape from the treatment of other crimes. Many jurisdictions held that a rape conviction could not be sustained if based solely on the uncorroborated testimony of the victim. Often judges added cautionary instructions to jury charges warning jurors that rape was a particularly difficult charge to prove. Courts in New Jersey allowed greater latitude in cross-examining rape victims and in delving into their backgrounds than in ordinary cases. Rape victims were required to make a prompt complaint or have their allegations rejected or viewed with great skepticism. Some commentators suggested that there be mandatory psychological testing of rape victims. E.g., 3A Wigmore on Evidence § 924a (Chadbourn rev. ed. 1970).
During the 1970s feminists and others criticized the stereotype that rape victims were inherently more untrustworthy than other victims of criminal attack…. Reformers condemned such suspicion as discrimination against victims of rape. See, e.g., The Legal Bias against Rape Victims, 61 A.B.A.J. 464 (1975). They argued that “[d]istrust of the complainant’s credibility [had] led to an exaggerated insistence on evidence of resistance,” resulting in the victim rather than the defendant being put on trial. Toward a Consent Standard, supra 43 U.Chi.L.Rev. at 626. Reformers also challenged the assumption that a woman would seduce a man and then, in order to protect her virtue, claim to have been raped. If women are no less trustworthy than other purported victims of criminal attack, the reformers argued, then women should face no additional burdens of proving that they had not consented to or had actively resisted the assault. see Linda Brookover Bourque, Defining Rape 110 (1989) (declaring objective of reform to “bring[ ] legal standards for rape cases in line with those used in other violent crimes by normalizing requirements for evidence”).
To refute the misguided belief that rape was not real unless the victim fought back, reformers emphasized empirical research indicating that women who resisted forcible intercourse often suffered far more serious injury as a result…. That research discredited the assumption that resistance to the utmost or to the best of a woman’s ability was the most reasonable or rational response to a rape.
The research also helped demonstrate the underlying point of the reformers that the crime of rape rested not in the overcoming of a woman’s will or the insult to her chastity but in the forcible attack itself—the assault on her person. Reformers criticized the conception of rape as a distinctly sexual crime rather than a crime of violence. They emphasized that rape had its legal origins in laws designed to protect the property rights of men to their wives and daughters. Susan Brownmiller, Against Our Will: Men, Women, and Rape 377 (1975); Acquaintance Rape: The Hidden Crime 318 (Andrea Parrot & Laurie Bechhofer, eds. 1991). Although the crime had evolved into an offense against women, reformers argued that vestiges of the old law remained, particularly in the understanding of rape as a crime against the purity or chastity of a woman. Definition of Forcible Rape, supra. The burden of protecting that chastity fell on the woman, with the state offering its protection only after the woman demonstrated that she had resisted sufficiently.
That rape under the traditional approach constituted a sexual rather than an assaultive crime is underscored by the spousal exemption. According to the traditional reasoning, a man could not rape his wife because consent to sexual intercourse was implied by the marriage contract. Therefore, sexual intercourse between spouses was lawful regardless of the force or violence used to accomplish it. Offender’s Forceful Conduct, supra; Note,To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99 Harv.L.Rev. 1255, 1258–60 (1986); see also Hale, supra (noting that “a ‘ravished’ woman could ‘redeem’ the convicted offender and save him from execution by marrying him”).
Critics of rape law agreed that the focus of the crime should be shifted from the victim’s behavior to the defendant’s conduct, and particularly to its forceful and assaultive, rather than sexual, character. Reformers also shared the goals of facilitating rape prosecutions and of sparing victims much of the degradation involved in bringing and trying a charge of rape. There were, however, differences over the best way to redefine the crime. Some reformers advocated a standard that defined rape as unconsented-to sexual intercourse; others urged the elimination of any reference to consent from the definition of rape. Nonetheless, all proponents of reform shared a central premise: that the burden of showing non-consent should not fall on the victim of the crime. In dealing with the problem of consent the reform goal was not so much to purge the entire concept of consent from the law as to eliminate the burden that had been placed on victims to prove they had not consented.
Similarly, with regard to force, rape law reform sought to give independent significance to the forceful or assaultive conduct of the defendant and to avoid a definition of force that depended on the reaction of the victim. Traditional interpretations of force were strongly criticized for failing to acknowledge that force may be understood simply as the invasion of “bodily integrity.” In urging that the “resistance” requirement be abandoned, reformers sought to break the connection between force and resistance.
III
The history of traditional rape law sheds clearer light on the factors that became most influential in the enactment of current law dealing with sexual offenses. The circumstances surrounding the actual passage of the current law reveal that it was conceived as a reform measure reconstituting the law to address a widely-sensed evil and to effectuate an important public policy. Those circumstances are highly relevant in understanding legislative intent and in determining the objectives of the current law.
In October 1971, the New Jersey Criminal Law Revision Commission promulgated a Final Report and Commentary on its proposed New Jersey Penal Code. New Jersey Criminal Law Revision Commission, The New Jersey Penal Code, Vol. I: Report and Penal Code (1971). The proposed Code substantially followed the American Law Institute’s Model Penal Code (MPC) with respect to sexual offenses. See M.P.C. §§ 213.1 to 213.4. The proposed provisions did not present a break from traditional rape law. They would have established two principal sexual offenses: aggravated rape, a first-degree or second-degree crime involving egregious circumstances; and rape, a crime of the third-degree. 1971 Penal Code, § 2C:14–1(a)(1). Rape was defined as sexual intercourse with a female to which she was compelled to submit by any threat that would prevent resistance by a woman of ordinary resolution. Id. at § 14–1(b)(1). The comments to the MPC, on which the proposed Code was based, state that “[c]ompulsion plainly implies non-consent,” and that the words “compels to submit” require more than “a token initial resistance.”
The Legislature did not endorse the Model Penal Code approach to rape. Rather, it passed a fundamentally different proposal in 1978 when it adopted the Code of Criminal Justice. L.1978, c. 95 § 2C:14–1 to –7; N.J.S.A. 2C:14–1 to –7. The new statutory provisions covering rape were formulated by a coalition of feminist groups assisted by the National Organization of Women (NOW) National Task Force on Rape. Both houses of the Legislature adopted the NOW bill, as it was called, without major changes and Governor Byrne signed it into law on August 10, 1978. The NOW bill had been modeled after the 1976 Philadelphia Center for Rape Concern Model Sex Offense Statute. The Model Sex Offense Statute in turn had been based on selected provisions of the Michigan Criminal Sexual Conduct Statute, Mich. Stat. Ann. § 28.788(4)(b) (Callaghan 1990), and on the reform statutes in New Mexico, Minnesota, and Wisconsin. The stated intent of the drafters of the Philadelphia Center’s Model Statute had been to remove all features found to be contrary to the interests of rape victims. John M. Cannel, New Jersey Criminal Code Annotated 279 (1991). According to its proponents the statute would “normalize the law. We are no longer saying rape victims are likely to lie. What we are saying is that rape is just like other violent crimes.”
Since the 1978 reform, the Code has referred to the crime that was once known as “rape” as “sexual assault.” The crime now requires “penetration,” not “sexual intercourse.” It requires “force” or “coercion,” not “submission” or “resistance.” It makes no reference to the victim’s state of mind or attitude, or conduct in response to the assault. It eliminates the spousal exception based on implied consent. It emphasizes the assaultive character of the offense by defining sexual penetration to encompass a wide range of sexual contacts, going well beyond traditional “carnal knowledge.” Consistent with the assaultive character, as opposed to the traditional sexual character, of the offense, the statute also renders the crime gender-neutral: both males and females can be actors or victims.
The reform statute defines sexual assault as penetration accomplished by the use of “physical force” or “coercion,” but it does not define either “physical force” or “coercion” or enumerate examples of evidence that would establish those elements. Some reformers had argued that defining “physical force” too specifically in the sexual offense statute might have the effect of limiting force to the enumerated examples. The task of defining “physical force” therefore was left to the courts.
That definitional task runs the risk of undermining the basic legislative intent to reformulate rape law. See Susan Estrich, Real Rape 60 (1987) (noting that under many modern formulations of rape “[t]he prohibition of force or ‘forcible compulsion’ ends up being defined in terms of a woman’s resistance”). That risk was encountered by the Michigan Supreme Court in People v. Patterson (1987). That court considered the sufficiency of the evidence of force or coercion in the prosecution of a sexual contact charge against a defendant who had placed his hands on the genital area of a seventeen-year-old girl while she was sleeping. A majority of the court concluded that the defendant had not used force as required by the statute because there was “no evidence of physical overpowering … [and] there was no submission.” Justice Boyle, in dissent, soundly criticized the majority’s position as a distortion of the legislature’s intent to protect the sexual privacy of persons from the use of force, coercion, or other undue advantage. Concluding that the statute did not require a showing of any extra force, Justice Boyle pointed out that in “defin[ing] force by measuring the degree of resistance by the victim,” the majority had effectively “reintroduc[ed] the resistance requirement, when the proper focus ought to be on whether the contact was unpermitted.”
Unlike the Michigan statute interpreted in Patterson, the New Jersey Code of Criminal Justice does not refer to force in relation to “overcoming the will” of the victim, or to the “physical overpowering” of the victim, or the “submission” of the victim. It does not require the demonstrated non-consent of the victim. As we have noted, in reforming the rape laws, the Legislature placed primary emphasis on the assaultive nature of the crime, altering its constituent elements so that they focus exclusively on the forceful or assaultive conduct of the defendant.
The Legislature’s concept of sexual assault and the role of force was significantly colored by its understanding of the law of assault and battery. As a general matter, criminal battery is defined as “the unlawful application of force to the person of another.” 2 Wayne LaFave & Austin Scott, Criminal Law, § 7.15 at 301 (1986). The application of force is criminal when it results in either (a) a physical injury or (b) an offensive touching. Any “unauthorized touching of another [is] a battery.” Thus, by eliminating all references to the victim’s state of mind and conduct, and by broadening the definition of penetration to cover not only sexual intercourse between a man and a woman but a range of acts that invade another’s body or compel intimate contact, the Legislature emphasized the affinity between sexual assault and other forms of assault and battery.
The intent of the Legislature to redefine rape consistent with the law of assault and battery is further evidenced by the legislative treatment of other sexual crimes less serious than and derivative of traditional rape. The Code redefined the offense of criminal sexual contact to emphasize the involuntary and personally-offensive nature of the touching. N.J.S.A. 2C:14–1(d). Sexual contact is criminal under the same circumstances that render an act of sexual penetration a sexual assault, namely, when “physical force” or “coercion” demonstrates that it is unauthorized and offensive. N.J.S.A. 2C:14–3(b). Thus, just as any unauthorized touching is a crime under traditional laws of assault and battery, so is any unauthorized sexual contact a crime under the reformed law of criminal sexual contact, and so is any unauthorized sexual penetration a crime under the reformed law of sexual assault.
The understanding of sexual assault as a criminal battery, albeit one with especially serious consequences, follows necessarily from the Legislature’s decision to eliminate non-consent and resistance from the substantive definition of the offense. Under the new law, the victim no longer is required to resist and therefore need not have said or done anything in order for the sexual penetration to be unlawful. The alleged victim is not put on trial, and his or her responsive or defensive behavior is rendered immaterial. We are thus satisfied that an interpretation of the statutory crime of sexual assault to require physical force in addition to that entailed in an act of involuntary or unwanted sexual penetration would be fundamentally inconsistent with the legislative purpose to eliminate any consideration of whether the victim resisted or expressed non-consent.
We note that the contrary interpretation of force—that the element of force need be extrinsic to the sexual act—would not only reintroduce a resistance requirement into the sexual assault law, but also would immunize many acts of criminal sexual contact short of penetration. The characteristics that make a sexual contact unlawful are the same as those that make a sexual penetration unlawful. An actor is guilty of criminal sexual contact if he or she commits an act of sexual contact with another using “physical force” or “coercion.” N.J.S.A. 2C:14–3(b). That the Legislature would have wanted to decriminalize unauthorized sexual intrusions on the bodily integrity of a victim by requiring a showing of force in addition to that entailed in the sexual contact itself is hardly possible.
Because the statute eschews any reference to the victim’s will or resistance, the standard defining the role of force in sexual penetration must prevent the possibility that the establishment of the crime will turn on the alleged victim’s state of mind or responsive behavior. We conclude, therefore, that any act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes the offense of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. The definition of “physical force” is satisfied under N.J.S.A. 2C:14–2c(1) if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration.
Under the reformed statute, permission to engage in sexual penetration must be affirmative and it must be given freely, but that permission may be inferred either from acts or statements reasonably viewed in light of the surrounding circumstances. Persons need not, of course, expressly announce their consent to engage in intercourse for there to be affirmative permission. Permission to engage in an act of sexual penetration can be and indeed often is indicated through physical actions rather than words. Permission is demonstrated when the evidence, in whatever form, is sufficient to demonstrate that a reasonable person would have believed that the alleged victim had affirmatively and freely given authorization to the act.
Our understanding of the meaning and application of “physical force” under the sexual assault statute indicates that the term’s inclusion was neither inadvertent nor redundant. The term “physical force,” like its companion term “coercion,” acts to qualify the nature and character of the “sexual penetration.” Sexual penetration accomplished through the use of force is unauthorized sexual penetration. That functional understanding of “physical force” encompasses the notion of “unpermitted touching” derived from the Legislature’s decision to redefine rape as a sexual assault. As already noted, under assault and battery doctrine, any amount of force that results in either physical injury or offensive touching is sufficient to establish a battery. Hence, as a description of the method of achieving “sexual penetration,” the term “physical force” serves to define and explain the acts that are offensive, unauthorized, and unlawful.
That understanding of the crime of sexual assault fully comports with the public policy sought to be effectuated by the Legislature. In redefining rape law as sexual assault, the Legislature adopted the concept of sexual assault as a crime against the bodily integrity of the victim. Although it is possible to imagine a set of rules in which persons must demonstrate affirmatively that sexual contact is unwanted or not permitted, such a regime would be inconsistent with modern principles of personal autonomy. The Legislature recast the law of rape as sexual assault to bring that area of law in line with the expectation of privacy and bodily control that long has characterized most of our private and public law. In interpreting “physical force” to include any touching that occurs without permission we seek to respect that goal.
Today the law of sexual assault is indispensable to the system of legal rules that assures each of us the right to decide who may touch our bodies, when, and under what circumstances. The decision to engage in sexual relations with another person is one of the most private and intimate decisions a person can make. Each person has the right not only to decide whether to engage in sexual contact with another, but also to control the circumstances and character of that contact. No one, neither a spouse, nor a friend, nor an acquaintance, nor a stranger, has the right or the privilege to force sexual contact. See Definition of Forcible Rape, supra, (arguing that “forcible rape is viewed as a heinous crime primarily because it is a violent assault on a person’s bodily security, particularly degrading because that person is forced to submit to an act of the most intimate nature”).
We emphasize as well that what is now referred to as “acquaintance rape” is not a new phenomenon. Nor was it a “futuristic” concept in 1978 when the sexual assault law was enacted. Current concern over the prevalence of forced sexual intercourse between persons who know one another reflects both greater awareness of the extent of such behavior and a growing appreciation of its gravity. Notwithstanding the stereotype of rape as a violent attack by a stranger, the vast majority of sexual assaults are perpetrated by someone known to the victim. One respected study indicates that more than half of all rapes are committed by male relatives, current or former husbands, boyfriends or lovers. Diana Russell, The Prevalence and Incidence of Forcible Rape and Attempted Rape of Females, 7 Victimology 81 (1982). Similarly, contrary to common myths, perpetrators generally do not use guns or knives and victims generally do not suffer external bruises or cuts. Although this more realistic and accurate view of rape only recently has achieved widespread public circulation, it was a central concern of the proponents of reform in the 1970s.
The insight into rape as an assaultive crime is consistent with our evolving understanding of the wrong inherent in forced sexual intimacy. It is one that was appreciated by the Legislature when it reformed the rape laws, reflecting an emerging awareness that the definition of rape should correspond fully with the experiences and perspectives of rape victims. Although reformers focused primarily on the problems associated with convicting defendants accused of violent rape, the recognition that forced sexual intercourse often takes place between persons who know each other and often involves little or no violence comports with the understanding of the sexual assault law that was embraced by the Legislature. Any other interpretation of the law, particularly one that defined force in relation to the resistance or protest of the victim, would directly undermine the goals sought to be achieved by its reform.
IV
In a case such as this one, in which the State does not allege violence or force extrinsic to the act of penetration, the factfinder must decide whether the defendant’s act of penetration was undertaken in circumstances that led the defendant reasonably to believe that the alleged victim had freely given affirmative permission to the specific act of sexual penetration. Such permission can be indicated either through words or through actions that, when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person affirmative and freely-given authorization for the specific act of sexual penetration.
In applying that standard to the facts in these cases, the focus of attention must be on the nature of the defendant’s actions. The role of the factfinder is not to decide whether reasonable people may engage in acts of penetration without the permission of others. The Legislature answered that question when it enacted the reformed sexual assault statute: reasonable people do not engage in acts of penetration without permission, and it is unlawful to do so. The role of the factfinder is to decide not whether engaging in an act of penetration without permission of another person is reasonable, but only whether the defendant’s belief that the alleged victim had freely given affirmative permission was reasonable.
In these cases neither the alleged victim’s subjective state of mind nor the reasonableness of the alleged victim’s actions can be deemed relevant to the offense. The alleged victim may be questioned about what he or she did or said only to determine whether the defendant was reasonable in believing that affirmative permission had been freely given. To repeat, the law places no burden on the alleged victim to have expressed non-consent or to have denied permission, and no inquiry is made into what he or she thought or desired or why he or she did not resist or protest.
In short, in order to convict under the sexual assault statute in cases such as these, the State must prove beyond a reasonable doubt that there was sexual penetration and that it was accomplished without the affirmative and freely-given permission of the alleged victim. As we have indicated, such proof can be based on evidence of conduct or words in light of surrounding circumstances and must demonstrate beyond a reasonable doubt that a reasonable person would not have believed that there was affirmative and freely-given permission. If there is evidence to suggest that the defendant reasonably believed that such permission had been given, the State must demonstrate either that defendant did not actually believe that affirmative permission had been freely-given or that such a belief was unreasonable under all of the circumstances. Thus, the State bears the burden of proof throughout the case.
In the context of a sexual penetration not involving unusual or added “physical force,” the inclusion of “permission” as an aspect of “physical force” effectively subsumes and obviates any defense based on consent. See N.J.S.A. 2C:2–10c(3). The definition of “permission” serves to define the “consent” that otherwise might allow a defendant to avoid criminal liability. Because “physical force” as an element of sexual assault in this context requires the absence of affirmative and freely-given permission, the “consent” necessary to negate such “physical force” under a defense based on consent would require the presence of such affirmative and freely-given permission. Any lesser form of consent would render the sexual penetration unlawful and cannot constitute a defense.
In this case, the Appellate Division concluded that non-consensual penetration accomplished with no additional physical force or coercion is not criminalized under the sexual assault statute. It acknowledged that its conclusion was “anomalous” because it recognized that “a woman has every right to end [physically intimate] activity without sexual penetration.” Thus, it added to its holding that “[e]ven the force of penetration might … be sufficient if it is shown to be employed to overcome the victim’s unequivocal expressed desire to limit the encounter.”
The Appellate Division was correct in recognizing that a woman’s right to end intimate activity without penetration is a protectable right the violation of which can be a criminal offense. However, it misperceived the purpose of the statute in believing that the only way that right can be protected is by the woman’s unequivocally expressed desire to end the activity. The effect of that requirement would be to import into the sexual assault statute the notion that an assault occurs only if the victim’s will is overcome, and thus to reintroduce the requirement of non-consent and victim-resistance as a constituent material element of the crime. Under the reformed statute, a person’s failure to protest or resist cannot be considered or used as justification for bodily invasion.
We acknowledge that cases such as this are inherently fact sensitive and depend on the reasoned judgment and common sense of judges and juries. The trial court concluded that the victim had not expressed consent to the act of intercourse, either through her words or actions. We conclude that the record provides reasonable support for the trial court’s disposition.
Accordingly, we reverse the judgment of the Appellate Division and reinstate the disposition of juvenile delinquency for the commission of second-degree sexual assault.
Notes and questions on M.T.S.
1. M.T.S. is a useful case because it both describes the traditional common law of rape and identifies the concerns that led advocates to push for statutory reform. Why was the common law definition of rape—“carnal knowledge of a woman, forcibly and against her will”—inadequate? Was the problem with the wording of the legal definition (the criminalization decision), or with the way that definition was used by prosecutors (the enforcement decision), or with the way that definition was applied by juries and trial courts (the adjudication decision)?
2. The New Jersey Supreme Court speaks sometimes of consent, sometimes of permission. And of course, the traditional common law definition spoke of neither, but did specify that the intercourse be “against [the] will” of the complainant. Is there any meaningful difference between consent, permission, or will? Consider whether criminal law should care about the actual mental state of the person who alleges rape, or instead about what that person communicates regarding sex. Does a concern for the victim’s actual mental state invite courts to “put the victim on trial”? How does the New Jersey Supreme Court attempt to avoid that result?
3. Consider the different roles of factfinders and appellate courts. In principle, facts are to be found at the trial court level, and appellate courts should answer only questions of law. Given that distinction, think about the detailed account of the factual evidence in Part I of the New Jersey Supreme Court’s opinion. Was it necessary to include the precise details of the encounter, as told both by C.G. and M.T.S.? Imagine that Part I included only one paragraph – the last paragraph that you see immediately before Part II, describing the trial court’s findings and the subsequent appeals. Would readers react differently to this case? Why do you think the New Jersey Supreme Court included the detailed chronology of the encounter?
4. In M.T.S., the New Jersey Supreme Court introduced an “affirmative consent” standard long before the concept of affirmative consent became widely embraced. Although you are likely to have encountered the term “affirmative consent” before reading this case, especially if you attended any training or received any materials as a college student about appropriate sexual contacts, affirmative consent is still largely unknown to criminal definitions of rape or sexual assault. That is, even though many universities and colleges (and some high schools) seek to instill in their students the idea that sex without affirmative consent is objectionable, most U.S. jurisdictions define rape (or sexual assault) in terms of force or non-consent without an explicit requirement of affirmative consent.
5. Is rape exceptional? Should the law view rape as “just like other violent crimes,” to quote the New Jersey Supreme Court (which was itself quoting advocates for the New Jersey statute)? Should we think of the crime as “sexual assault,” unwanted physical contact akin to the ordinary assaults studied at the outset of this chapter, but with a specific attendant circumstance: contact with sexual organs rather than other body parts? Or does “unwanted touching” take on a different character when sexual organs are involved? Are there features of sexual activity that make it categorically different from other types of physical contact, so that rape law should be categorically different from assault law? Professor Aya Gruber addresses these questions in Sex Exceptionalism in Criminal Law (Stanford Law Review, forthcoming 2023).
6. Rape and race: Sexual offenses are another area of criminal law for which patterns of racial disparity have been extensively documented. First, as for homicide, “the racial composition of the defendant-victim dyad,” or the respective racial identities of the defendant and victim, has a significant influence on enforcement and adjudication decisions: black men accused of raping white women are more likely to be charged with severe offenses and subjected to severe penalties. See, e.g., I. Bennett Capers, The Unintentional Rapist, 87 Wash. U. L. Rev. 1345, 1360-1364 (2010). The death penalty is no longer available as a penalty for the crime of rape, but one of the considerations that led the Supreme Court to prohibit the imposition of capital punishment for rape was the fact that this penalty was reserved almost exclusively for black men convicted of assaulting white women. Beyond these sentencing patterns, Professor Capers writes of a more general “white letter law of rape” that exists alongside the “black letter” law.
Most of the time … a type of unwritten law of race, what I have termed “white letter law”—suggesting near invisibility, something akin to laws “inscribed in white ink on white paper”—dictated whether the elements of the crime of rape had been satisfied; indeed, whether the elements were even capable of being satisfied. Even under Blackstone’s definition that rape was “carnal knowledge of a woman forcibly and against her will,” jurisdictions in this country applied a type of white letter law exemption. It was understood, for example, that the definition of rape did not prohibit the rape of black slaves, or, for that matter, slave children.
The unwritten white letter law of rape held particular sway following ratification of the Reconstruction Amendments, when explicit distinctions based on race in criminal statutes risked invalidation under the Fourteenth Amendment’s Equal Protection Clause. Evidence of this can be seen in the black letter law’s initial requirement of proof that the victim resisted to the utmost before a conviction of rape would be sustained. Though the “utmost resistance” requirement was clear, what it meant in practice—in terms of which victims were believed, which men were prosecuted, and which defendants were found guilty—turned on what was often unsaid, i.e., the white letter law. As Susan Estrict aptly observed … resistance itself was color-dependent: “white women [were] not required to resist black men….”
In short, though the black letter law was, at least on the books, “color-blind,” the white letter law provided caveats and exceptions that were color-coded.
Capers, The Unintentional Rapist, 1357-1358.
1. [Fn. 2 by the Court:] The victim’s primary care physician testified at trial that the victim’s condition would have gradually deteriorated over time and that the disease would have shortened her life. He opined that, based on the severity of her disease, the victim could have expected to enjoy only three to six more years of “good quality” life.
2. [Fn. 4 by the Court:] Conviction under G.L. c. 90, § 24G(b), requires proof by the Commonwealth beyond a reasonable doubt that (1) the defendant operated a motor vehicle, (2) on a public way, (3) in a negligent manner to endanger lives and public safety, (4) thereby causing the death of another person. The focus at trial was on whether the defendant was negligent and whether her negligence caused the victim’s death. Only the latter element is at issue in this appeal.
3. [Fn. 6 by the Court:] The defendant’s attempt to assign blame to the victim for her own death, because she “made the deliberate choice to ... engage in irrational and self-destructive behavior” is not persuasive. There is no contributory negligence in the law of motor vehicle homicide. We also reject the defendant’s attempt to apply the tort doctrine of “avoidable consequences” to this criminal matter.
4. [Fn. 8 by the Court:] “If the defendant’s actions would not have brought about the death all by themselves without the intervention of some other person or event, the defendant is still held responsible as the cause of death if two conditions are met. First, the defendant’s actions directly and substantially set in motion a natural, continuous sequence of events to cause the death. And second, a reasonable person in the defendant’s position would have foreseen that her actions could easily result in serious injury or death to someone like the victim.” | textbooks/biz/Criminal_Law/Criminal_Law%3A_An_Integrated_Approach_(Ristroph)/1.06%3A_Crimes_Against_the_Person.txt |
Introduction
Many crimes are defined with reference to some prohibited (or highly regulated) object or substance. The two most familiar examples, and the focus of this chapter, are drug offenses and gun offenses. The simplest form of a prohibited-object offense is possession—possession of cocaine, for example—but the concept of possession is sometimes complicated, as explored in this chapter. Another common form of prohibited-object offenses combines possession with the intent to distribute. Other statutes criminalize the actual distribution, or the manufacture, transportation, or storage of prohibited substances or objects. Criminal regulations of drugs and guns generate an enormous number of cases on criminal court dockets. Indeed, more Americans are arrested for drug crimes than for any other general category of crimes, such as violent offenses or property crimes. Gun crimes do not generate nearly as large a share of the criminal court docket as drug offenses do, but they are a significant source of both criminal convictions and eventual prison sentences. And gun enhancements—an increase in the penalty for some other criminal conduct based on the defendant’s possession of a gun—are an important contributing factor to the size of America’s prisoner population.
The rationale for the criminalization of guns or drugs may seem self-evident: possession of the object is thought to be dangerous, and therefore the government wishes to deter possession. But note that this category of criminal law imposes punishment for the creation of a risk, rather than for the actual materialization of some harm. No one needs to experience adverse effects of drug use, or even to use drugs at all, for prosecutors to establish an offense of drug possession or distribution. Similarly, the weapons offenses addressed in this chapter typically involve guns that don’t go off, but are seen as sufficiently risky that mere possession is criminalized. If a gun does go off – if it is used to shoot someone – criminal law typically addresses that actual harm through assault or homicide law. Thus, this chapter gives us the opportunity to think about the decision to criminalize risky conduct without requiring proof of an actual injury. How should policymakers determine that a given object or substance is dangerous enough to criminalize? What kinds of factors – such as empirical evidence, moral judgments, or political considerations – actually do influence these criminalization decisions?
Another distinctive feature of the crimes addressed in this chapter is that they typically involve consensual conduct. That is, the person who possesses drugs or a gun has often obtained the contraband by choice, from a willing seller; the person who distributes the prohibited object is usually doing so to a willing purchaser. The crimes addressed in this chapter are often called “victimless” crimes, in the sense that there is usually not a specific person who is directly injured by the prohibited activity and likely to complain to law enforcement about it. To be sure, many would argue that drug use and distribution, or widespread gun possession, do have indirect victims in that these practices destabilize communities and contribute to higher levels of violence. This chapter offers some background data on the connections between drugs and violence, and between guns and violence.
The notion that some objects are dangerous enough to be criminally regulated is an old idea. Various forms of weapons and liquor offenses have existed in state law since the earliest days of the American republic. But the experiment with nationwide alcohol prohibition early in the twentieth century proved very important to the later trajectory of American criminal law. Some scholars argue that we cannot fully understand the “War on Drugs” or the broader “War on Crime” without appreciating the ways those massive criminalization and enforcement initiatives were made possible by “the War on Alcohol.” See Lisa McGirr, The War on Alcohol: Prohibition and the Rise of the American State (2016). The Eighteenth Amendment, which was ratified in 1919 and took effect in 1920, provided that “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.” Again, many state and local laws had regulated or outright prohibited alcohol before 1919, but Prohibition was a nationwide ban, and it was understood to be such a novel use of federal authority that it required a constitutional amendment. President Herbert Hoover famously called Prohibition a “noble experiment,” but by most accounts, the experiment was a failure. Consumption of alcohol decreased initially, then resumed and even increased. The criminalization of alcohol production and distribution created black markets and encouraged the development of organized crime. Liquor laws were selectively enforced, often along racial lines. The inconsistent enforcement of these laws was one of the major themes of critiques of Prohibition that led to the abandonment of the “noble experiment” and the repeal of the Eighteenth Amendment in 1933.
But as one historian puts it, “Prohibition is often described as a dead letter, but it was an extremely lively corpse.” Lawrence Friedman, Crime and Punishment in American History 266 (1993). During Prohibition, extensive resources were devoted to the expansion of federal law enforcement capacities and, to a lesser degree, state law enforcement. Many of the institutions that are necessary for mass incarceration—the policing and surveillance capacities, the prosecuting agencies, the prisons—originated or were greatly expanded during Prohibition. Historian Lisa McGirr argues that Prohibition created both the institutional capacity and a moral precedent for the War on Drugs: “[In] today’s colossal penal state, the most consequential harvest of the war on alcohol was the uniquely American cross-breeding of prohibitionary and punitive approaches toward illicit recreational narcotic substances…. The war against drugs was a smaller but longer-lived effort birthed simultaneously.” McGirr, The War on Alcohol, at 250.
One feature of alcohol prohibition is also characteristic of contemporary drug and gun criminalization: the underlying conduct is fairly common, so common that law enforcement could not hope to detect and apprehend all who engage in it. At the same time, these prohibited-object offenses are usually relatively easy to prosecute. Once law enforcement seizes the prohibited object from a defendant, it is not difficult to obtain a conviction. The seized contraband, along with police testimony about how they obtained it, will usually be sufficient to establish the elements of the offense. Together, the frequency of violation and ease of prosecution for crimes of prohibition create expansive enforcement discretion: which drug users or sellers, or which gun carriers, will be subject to criminal interventions? Recall United States v. Armstrong in Chapter Three, in which the Supreme Court considered but ultimately rejected a claim that federal prosecutors were enforcing drug laws selectively on the basis of race. Moreover, since these “victimless” crimes are often detected through sting operations or other undercover efforts, enforcement officials play a significant role in shaping factual details that affect a defendant’s criminal liability: what quantity of drugs does the undercover officer seek to buy? How many transactions with an undercover agent are staged before an arrest, and where do those transactions take place?
Patterns of racial disparity can be found in the enforcement of all the categories of crimes discussed in this book, but the patterns are particularly striking, and very extensively documented, with regard to drug offenses. Some scholars point to drug offenses as the most important source of racial disparities in mass incarceration. See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in an Age of Colorblindness (2010). Others have questioned whether the War on Drugs is the central factor driving mass incarceration, noting that more people are imprisoned for “violent” offenses than for drug offenses. See, e.g., John Pfaff, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform (2017). The issue is complicated: we cannot fully measure the impact of drug criminalization by looking at prison sentences for drug offenses. The majority of drug offense convictions lead to a sentence other than prison time, such as probation or community supervision, but the fact of a prior conviction (even one not punished with prison time) can make it more likely that a given person will be sentenced to prison for a subsequent offense. That is, stark racial disparities in one area of criminal law can generate racial disparities in another area. We seem to see this with regard to gun possession offenses, where there is considerable evidence that “people of color bear the brunt of enforcement.” Benjamin Levin, Guns and Drugs, 84 Fordham L. Rev. 2173, 2194 (2016). Unlike drug laws, which often categorically prohibit possession of a given substance by any member of the general public, a typical gun prohibition identifies certain categories of persons—such as those with felony convictions—who are barred from possessing guns. If persons of color are overrepresented among all persons with felony convictions, in part because of racial bias in enforcement of drug laws, then we should not be surprised to see persons of color overrepresented among those arrested for and convicted of weapons offenses. Still further disparity may be produced by enforcement choices with regard to gun laws, as this chapter will explore. The last section of this chapter looks in more detail at the role of drug and gun offenses in producing mass incarceration.
By the end of this chapter, you should understand the basic concepts used to criminalize dangerous objects and substances. You will learn legal definitions of possession and constructive possession, and the way that the legal concept of possession interacts with mental state requirements. In that regard, the cases in this chapter will help you further expand your understanding of mens rea analysis in criminal law. You will also see examples of ways that distribution and transportation (in the drug context) or various forms of “use” (in the gun context) are criminalized.
This chapter, like the rest of the book, uses appellate judicial opinions to teach key points of law. Earlier chapters have already discussed ways in which appellate caselaw can be misleading, and here it’s especially important to keep that point in mind. The vast majority of drug and gun prosecutions are resolved with a guilty plea and never lead to appellate review. Even among the tiny fraction of drug and gun cases that do eventually gain appellate review, the issue on appeal is much more likely to concern specific enforcement actions, as when a defendant claims that the police discovered the contraband through an unconstitutional search or seizure, than a question about the statutory definition of the offense. The judicial scrutiny of defendants’ mental states that you see in the cases in this chapter is a useful teaching tool, but it is atypical in most areas of criminal law, and it is especially atypical within the world of gun and drug prosecutions. As always, read judicial opinions carefully but put them in context; be sure to read the surrounding notes carefully to gain a more complete understanding of drug and gun law in practice.
Drug Offenses: The Meaning of “Possession”
Louisiana Revised Statutes § 40:966(C). Possession [of narcotics].
It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule I unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner [or as otherwise authorized…]
STATE of Louisiana
v.
Walter BOOTH
Court of Appeal of Louisiana, Fourth Circuit
745 So.2d 737
Oct. 20, 1999
MURRAY, Judge.
… Defendant Walter Booth, Jr., was charged by bill of information with possession of heroin, to which he pled not guilty. A twelve-person jury found him guilty as charged on February 19, 1998 [and] he was sentenced to five years at hard labor….
New Orleans Police Officer Travis McCabe testified that on October 20, 1997, he conducted an investigation of 2309 Sixth Street, Apartment 2, after he and Sergeant Steven Gaudet received information from a confidential informant. The officers later applied for and received a search warrant for the premises. He and Sgt. Gaudet, along with two other officers and a dog trained to search for drugs, executed the warrant [early in the morning on October 21, 1997]. [Mr. Booth and Gail Varnado were both at the apartment at the time it was searched.] Officer McCabe described the apartment as small, consisting of one bedroom, one bathroom, a living room, and a kitchen. The search dog located narcotics inside a wall-mounted heater. Officer McCabe opened the vent on the bottom and found a plastic package containing approximately twenty-seven aluminum foil packages of heroin. The officers also discovered on top of a curio cabinet, a large felt hat containing a syringe, a long piece of rubber, and a small plastic bag containing five additional small foil packages of heroin. Officer McCabe also recovered an Entergy electric bill in Mr. Booth’s name, and a letter from a religious organization addressed to both him and Ms. Varnado, both of which were addressed to 2309 Sixth Street, Apartment “D.” At that point, Mr. Booth and Ms. Varnado were advised of their rights and arrested.
On cross-examination, Officer McCabe admitted that none of the drugs was in plain view, and that initially the focus of the police investigation was Ms. Varnado. He said he had occasion to watch the apartment from a distance, and witnessed an informant make a purchase from Ms. Varnado with a marked twenty-dollar bill, although this marked twenty-dollar bill was not found during the search of the apartment….
Sergeant Steve Gaudet explained that he remained in the area of the apartment complex while Officer McCabe went to obtain the search warrant. He detained Ms. Varnado outside of the apartment as she was leaving, and took her inside, where Mr. Booth was seated in the front room, clad only in a pair of boxer shorts. He said the wall-mounted heater where the drugs were found was next to the sofa where Mr. Booth was seated. …
Mr. Booth testified in his own behalf, and stated that on October 20 and 21, 1997, he was living at the Sixth Street address, but Ms. Varnado, whom he stated was his fiancée, was not living there. In fact, Mr. Booth had no idea where Ms. Varnado was living at that time. He had agreed only that Ms. Varnado could stay at his apartment that particular night, in the front room. Mr. Booth claimed that when police found him he was sleeping in the bedroom, and they awakened him and asked where Ms. Varnado was. He denied knowledge of any drugs in the heater or in the hat.
On cross-examination, Mr. Booth again stated that Ms. Varnado was his fiancée, but said he and she “had a legal separation…” He again denied being awake sitting in the living room when police entered the apartment. Mr. Booth said the letter addressed to Ms. Varnado found in his apartment was brought with her from her jail cell. He explained that she recently had been paroled, and was going to live with him, but they had an altercation and he put her out. He said she asked to stay in the front room for a couple of days, and that was how the letter got there. Mr. Booth admitted to a 1995 conviction for “having a gun,” a conviction for possession of marijuana, a 1975 conviction for being a convicted felon in possession of a firearm, and a conviction for armed robbery. He denied or could not recall [other] prior convictions….
… Mr. Booth claims that the evidence is insufficient to sustain his conviction.
… “In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of act could have found the defendant guilty beyond a reasonable doubt…. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted….”
La.Rev.Stat. 40:966(C) makes it unlawful for any person to knowingly or intentionally possess heroin, a controlled dangerous substance classified in Schedule I. In State v. Brady (1999), this Court stated:
To support a conviction for possession of narcotics, the State must prove that a defendant knowingly possessed narcotics. The State need not prove that the defendant was in actual possession of the narcotics found; constructive possession is sufficient to support conviction. The mere presence of a defendant in the area where the narcotics were found is insufficient to prove constructive possession.
A person not in physical possession of narcotics may have constructive possession when the drugs are under that person’s dominion and control. A person may be deemed to be in joint possession of a drug which is in the physical possession of a companion if he willfully and knowingly shares with the other the right to control it. Determination of whether a defendant had constructive possession depends on the circumstances of each case. Among the factors to consider in determining whether the defendant exercised dominion and control sufficient to constitute constructive possession are whether the defendant knew that illegal drugs were present in the area, the defendant’s relationship to the person in actual possession of the drugs, whether there is evidence of recent drug use, the defendant’s proximity to the drugs, and any evidence that the area is frequented by drug users.
Brady, 727 So.2d at 1268 [internal citations omitted].
In the instant case, police observed Ms. Varnado sell narcotics to an informant out of Mr. Booth’s apartment. She was detained and taken inside of the apartment, where she admittedly was staying. Mr. Booth admitted that Ms. Varnado was his fiancée. Accepting the testimony of Officer McCabe, Mr. Booth was in the front room when police entered. Heroin was found in a wall-mounted heater next to where Mr. Booth was seated, and more heroin and drug paraphernalia was found in a curio cabinet in the living room. A letter found in the apartment was addressed to Mr. Booth and Ms. Varnado, at the apartment in question.
Mr. Booth’s testimony conflicted with that of police officers in that he said he was sleeping in his bedroom when police entered the apartment and asked him where Ms. Varnado was. He disputed that the police took Ms. Varnado into custody outside, and brought her into the apartment when they entered. Mr. Booth denied any knowledge of the drugs in his apartment, and said his fiancée was only staying at his apartment temporarily. The jury knew that Mr. Booth had prior convictions for armed robbery, possession of marijuana, and being a convicted felon in possession of a firearm. The jury obviously did not believe that Mr. Booth was not aware of the heroin found in two locations in his apartment. The trier of fact’s determination of credibility should not to be disturbed on appeal absent an abuse of discretion.
In State v. Maresco (La.1987), police served a search warrant on an apartment where Lori Wermuth and her fiancé, Gary Weaver, resided. Wermuth was at work when the warrant was served, but Weaver and Steven Maresco were in the apartment. Police found seven pounds of marijuana packaged in large and small plastic bags in the kitchen and on the dining room table, and a vinyl bag inside of a closed trunk in the bedroom containing over six thousand Valium pills. A scale was also recovered, along with mail addressed to Wermuth. In affirming Wermuth’s conviction for possession with intent to distribute marijuana, this Court stated: “Although Lori Wermuth was not home when the warrant was executed, the marijuana was seized in her apartment…. The jury was satisfied that the State proved Wermuth … exercised sufficient control over the marijuana. Their conclusion was reasonable and there is no basis to hold otherwise.”
In the instant case, viewing all of the evidence in a light most favorable to the prosecution, any rational trier of fact could have found that Mr. Booth knowingly exercised dominion and control over the heroin found in his apartment, and that all of the essential elements of the offense of possession of heroin were proven beyond a reasonable doubt….
For the foregoing reasons, we affirm Mr. Booth’s conviction….
Notes and questions on State v. Booth
1. Consider the actus reus of possession offenses. Is possession an act? Do possession offenses violate the general requirement, discussed in Chapter Two, that criminal liability requires a voluntary act? (See State v. Alvarado and accompanying notes.) The acquisition of drugs or some other object is more easily identified as an act, but most jurisdictions don’t criminalize “buying drugs” or “acquiring drugs” as a separate offense. Instead, mere possession is the basic offense, and then there are more serious offenses such as distribution (which includes selling), manufacture, and transportation of the prohibited substance. Did Walter Booth possess drugs simply by being near them? And if so, was his conviction based on a voluntary act?
2. Now consider the mens rea of possession offenses. Most jurisdictions address the above questions by linking possession to a specific mental state. If a defendant knowingly acquires or receives a controlled substance, or knows that a controlled substance in his control, he can be convicted of possession. This approach is reflected in the Model Penal Code’s Section 2.01, which states, “Possession is an act … if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.” Here, it may be helpful to remember that criminal liability can be based on an omission, or a failure to act, in some circumstances. If there is a specific legal duty to act and a defendant fails to fulfill that duty, he or she may be criminally liable. (Omission liability is discussed briefly in Chapter Two and in more detail in Chapter Six.) One could (and courts do) characterize possession as either a knowing act or a knowing omission: either the defendant knowingly acquired the drugs (an act), or the defendant failed to “terminate his possession” even after becoming aware that he was in possession of a controlled substance.
3. Again, the usual view is that a possession statute both prohibits knowing acquisition and creates a duty to dispossess oneself of the prohibited object if one becomes aware that the object is in one’s control. The concept of possession thus combines both act and mental state elements. Until 2021, the state of Washington was an outlier on this issue. Its courts had interpreted the state’s possession of controlled substances statute as a strict liability offense, holding that the prosecution need not prove that the defendant knew that drugs were in his possession. Thus, a commercial truck driver who entered the state with marijuana hidden in pallets on his truck could be convicted, even in the absence of any evidence that he knew the marijuana was there. But the Washington Supreme Court found the strict liability statute unconstitutional in 2021, holding that the law impermissibly criminalized “wholly innocent nonconduct” when applied to a defendant who had no knowledge of possession. State v. Blake, 481 P.3d 521 (Wash. 2021).
4. A further wrinkle: what if a defendant is aware that she possesses a given object, but is mistaken about what the object is? What if she find a plastic bag left in the kitchen and believes that it holds baking powder, but the substance inside is really cocaine? The usual account of possession as knowing possession would require knowledge that the substance is a prohibited one. Of course, depending on the circumstances, a defendant may not be able to convince a factfinder that he or she was mistaken about the nature of the object possessed. And specific statutes may criminalize even some forms of mistaken possession. For more details, see United States v. Jewell and State v. Freeman in this chapter, and the accompanying notes for each case.
5. Notwithstanding the formal definition of possession as knowing possession in most jurisdictions, practitioners and commentators occasionally refer to possession offenses somewhat imprecisely as strict liability offenses. The strict liability characterization arises in part because the evidence that suffices to “prove” knowledge is often minimal, so that a possession offense operates like a strict liability offense. Once contraband is found on or near your person, that evidence is itself likely to be sufficient for a criminal conviction even if as a formal matter the statute requires proof of knowledge.
6. The Booth court refers to “actual possession,” “physical possession,” and “constructive possession.” The terms actual possession or physical possession are often used interchangeably. In one typical jury instruction, “Actual possession means a) the object is in the hand of or on the person, or b) the object is in a container in the hand or on the person, or c) the object is so close as to be within ready reach and is under the control of the person.” Fla. Std. Jury Instr. (Crim.) 10.15 (2017). For a similar instruction, see footnote 3 in State v. Donaldson in Chapter Five. As the Donaldson instruction makes clear, an object can be possessed by more than one person at a time. Thus, in the case you’ve just read, Walter Booth and Gail Varnado can each be convicted of possessing the same heroin.
7. What factors does the Booth court identify as relevant to establishing constructive possession? Could there ever be a case in which the resident of a home was not in constructive possession of any drugs found within that home? Most of the time, the homeowner or tenant is likely to be found in constructive possession, as suggested by the Booth court’s discussion of State v. Maresco. [exclusive control v shared control] But there are occasional exceptions. In State v. Cantabrana, 921 P.2d 572 (Ct. App. Wa. 1996), a state court found that it was error to instruct a jury that constructive possession could be established simply by the defendant’s control over the premises, without showing control over the drugs themselves. In State v. Hodge, 781 So.2d 575 (Ct. App. La. 2001), a husband and wife were both prosecuted for drug offenses after their home was searched. During the search, police discovered marijuana in the husband’s pockets, in the bag of another woman present at the house, and in the pockets of a men’s jacket in a rear room. An additional bag of marijuana was found wrapped in a sweatshirt and inside a dryer in the backyard. The appellate court reversed the wife’s conviction, finding that while a rational trier of fact could have concluded that Allison Hodge knew that her husband was selling marijuana from the residence, there was insufficient evidence that Mrs. Hodge herself “exercised dominion and control” over any of the marijuana.
8. Walter Booth had prior convictions for at least one drug offense, at least one weapon offense, and armed robbery. Are these convictions relevant to the adjudication of this heroin possession charge? What do they show? Why does the appellate court emphasize that the jury was aware of Booth’s prior convictions?
9. There is a very close association of drugs with violence in public discourse and policy discussions. But what, precisely, is the connection? Does drug use tend to make people violent? Does drug addiction tend to make people willing to use violence to obtain drugs? Does the drug trade involve acts of violence to defend territory or avoid law enforcement? One comprehensive study has concluded that there is little evidence “to support the assumption that drugs cause violence.” Shima Baradaran, Drugs and Violence, 88 S. Cal. L. Rev. 227, 233 (2015). “[C]ourts and scholars assume that drug crime may lead to at least two forms of violence: (1) violence associated with substance intoxication, and (2) violence arising from the transportation and sale of drugs. Violence arising from the transportation and sale of drugs is significantly more common, though still less common than assumed.” Id. at 289. Defendants charged with drug offenses are less likely to commit crimes of violence than defendants charged with other categories of crime, Professor Baradaran reports. Among those in the drug trade, “drug violence is exaggerated and may be attributable to drug law enforcement and prohibition rather than drug use or the nature of the industry.” Id. at 290.
10. How do police typically discover drug possession? In Booth, the police conducted surveillance on a home after receiving a tip from an informant. They witnessed conduct (by Gail Varnado) that led them to apply for a warrant to search the home. Most of the time, police discover drugs without needing to obtain a search warrant. Searches of individual persons and vehicles do not usually require a warrant, so long as police can identify some grounds of “reasonable suspicion,” as discussed in Chapter Three. Recall also Copenhaver in Chapter One, where a traffic stop for an expired registration led the police to investigate the driver for intoxication, and then to search the vehicle and discover contraband.
11. Notice the court’s description of Booth’s sentence for the heroin possession offense: “five years at hard labor.” Was Booth headed off to a chain gang or other forced labor setting? “At hard labor” is partly, but only partly, a matter of terminology. In Louisiana, which is the U.S. state with the highest incarceration rate, “imprisonment at hard labor” is the standard terminology used to describe any prison sentence. (A defendant sentenced to serve “without hard labor” will be sent to a parish jail rather than a state prison.) State law does allow prisons to require prisoners to work—and some jail detainees are also required to work, which is why the “at hard labor” language is partly just a matter of legal terminology. One Louisiana sheriff made the news in 2017 when he objected to new parole laws on the grounds that the state was releasing “the ones you can work.” He explained, “In addition to the bad ones — in addition to them — they are releasing some good ones that we use every day to wash cars, to change the oil in our cars, to cook in the kitchen — to do all that where we save money.” Many other states also use the labor of prisoners; for example, California’s use of prisoners to fight forest fires has received substantial news coverage in recent years. Prisoners are typically paid some small amount for their labor, but the rates are often far below minimum wage; some jobs are paid at \$0.20 / hour in Louisiana. These practices have so far survived constitutional challenges. The Thirteenth Amendment to the federal constitution declares, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States…” (emphasis added). For a recent overview of compelled and underpaid labor among American prisoners, see Michelle Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, 104 Cornell L. Rev. 899 (2019).
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Check Your Understanding (7-1)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
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21 U.S.C. § 841. Prohibited acts.
(a) Unlawful acts
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally–
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
UNITED STATES of America
v.
Charles Demore JEWELL
United States Court of Appeals, Ninth Circuit
532 F.2d 697
Feb. 27, 1976
BROWNING, Circuit Judge:
We took this case in banc to perform a simple but necessary “housekeeping” chore. The opinion in United States v. Davis (9th Cir. 1974), refers to possession of a controlled substance, prohibited by 21 U.S.C. s 841(a)(1), as a “general intent” crime. If this means that the mental state required for conviction under section 841(a)(1) is only that the accused intend to do the act the statute prohibits, the characterization is incorrect. The statute is violated only if possession is accompanied both by knowledge of the nature of the act and also by the intent “to manufacture, distribute, or dispense.” The jury was so instructed in this case. We are unanimously of the view that this instruction reflects the only possible interpretation of the statute. The contrary language in Davis is disapproved.
This does not mean that we disapprove the holding in Davis. On the contrary, we are unanimously of the view that the panel in Davis properly held that “The government is not required to prove that the defendant actually knew the exact nature of the substance with which he was dealing.” We restrict Davis to the principle that a defendant who has knowledge that he possesses a controlled substance may have the state of mind necessary for conviction even if he does not know which controlled substance he possesses.
In the course of in banc consideration of this case, we have encountered another problem that divides us….
It is undisputed that appellant entered the United States driving an automobile in which 110 pounds of marijuana worth \$6,250 had been concealed in a secret compartment between the trunk and rear seat. Appellant testified that he did not know the marijuana was present. There was circumstantial evidence from which the jury could infer that appellant had positive knowledge of the presence of the marihuana, and that his contrary testimony was false. [In a footnote, the court explained that the appellant had testified that while he was visiting Mexico, a stranger had offered to sell him marijuana, then asked him to drive a car back into the United States. Appellant agreed to drive the car back for payment of \$100.]
On the other hand there was evidence from which the jury could conclude that … although appellant knew of the presence of the secret compartment and had knowledge of facts indicating that it contained marijuana, he deliberately avoided positive knowledge of the presence of the contraband to avoid responsibility in the event of discovery. [From the court’s footnote: The Drug Enforcement Administration agent testified that appellant stated “he thought there was probably something wrong and something illegal in the vehicle, but that he checked it over. He looked in the glove box and under the front seat and in the trunk, prior to driving it. He didn’t find anything, and, therefore, he assumed that the people at the border wouldn’t find anything either” (emphasis added). Appellant was asked at trial whether he had seen the special compartment when he opened the trunk. He responded, “Well, you know, I saw a void there, but I didn’t know what it was.” He testified that he did not investigate further….]
If the jury concluded the latter [possibility] was indeed the situation, and if positive knowledge is required to convict, the jury would have no choice consistent with its oath but to find appellant not guilty even though he deliberately contrived his lack of positive knowledge. Appellant urges this view. The trial court rejected the premise that only positive knowledge would suffice, and properly so.
Appellant tendered an instruction that to return a guilty verdict the jury must find that the defendant knew he was in possession of marijuana. The trial judge rejected the instruction because it suggested that “absolutely, positively, he has to know that it’s there.” The court said, “I think, in this case, it’s not too sound an instruction because we have evidence that if the jury believes it, they’d be justified in finding he actually didn’t know what it was he didn’t because he didn’t want to find it.”
[Instead,] the court told the jury that the government must prove beyond a reasonable doubt that the defendant “knowingly” brought the marihuana into the United States and that he “knowingly” possessed the marihuana… The court continued:
The Government can complete their burden of proof by proving, beyond a reasonable doubt, that if the defendant was not actually aware that there was marijuana in the vehicle he was driving when he entered the United States his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.
The legal premise of these instructions is firmly supported by leading commentators here and in England. Professor Rollin M. Perkins writes, “One with a deliberate antisocial purpose in mind . . . may deliberately ‘shut his eyes’ to avoid knowing what would otherwise be obvious to view. In such cases, so far as criminal law is concerned, the person acts at his peril in this regard, and is treated as having ‘knowledge’ of the facts as they are ultimately discovered to be.” … Professor Glanville Williams states, on the basis both English and American authorities, “To the requirement of actual knowledge there is one strictly limited exception. . . . (T)he rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge.”
The substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable. The textual justification is that in common understanding one “knows” facts of which he is less than absolutely certain. To act “knowingly,” therefore, is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, “positive” knowledge is not required.
This is the analysis adopted in the Model Penal Code. Section 2.02(7) states: “When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.” …
…There is no reason to reach a different result under the statute involved in this case. Doing so would put this court in direct conflict with Courts of Appeals in two other circuits that have approved “deliberate ignorance” instructions in prosecutions under 21 U.S.C. s 841(a)… Nothing is cited from the legislative history of the Drug Control Act indicating that Congress used the term “knowingly” in a sense at odds with prior authority. Rather, Congress is presumed to have known and adopted the “cluster of ideas” attached to such a familiar term of art. Morissette v. United States (1952)….
Appellant’s narrow interpretation of “knowingly” is inconsistent with the Drug Control Act’s general purpose to deal more effectively “with the growing menace of drug abuse in the United States.” Holding that this term introduces a requirement of positive knowledge would make deliberate ignorance a defense. It cannot be doubted that those who traffic in drugs would make the most of it. This is evident from the number of appellate decisions reflecting conscious avoidance of positive knowledge of the presence of contraband in the car driven by the defendant or in which he is a passenger, in the suitcase or package he carries, in the parcel concealed in his clothing….
It is no answer to say that in such cases the fact finder may infer positive knowledge. It is probable that many who performed the transportation function, essential to the drug traffic, can truthfully testify that they have no positive knowledge of the load they carry. Under appellant’s interpretation of the statute, such persons will be convicted only if the fact finder errs in evaluating the credibility of the witness or deliberately disregards the law.
It begs the question to assert that a “deliberate ignorance” instruction permits the jury to convict without finding that the accused possessed the knowledge required by the statute. Such an assertion assumes that the statute requires positive knowledge. But the question is the meaning of the term “knowingly” in the statute. If it means positive knowledge, then, of course, nothing less will do. But if “knowingly” includes a mental state in which the defendant is aware that the fact in question is highly probable but consciously avoids enlightenment, the statute is satisfied by such proof.
It is worth emphasizing that the required state of mind differs from positive knowledge only so far as necessary to encompass a calculated effort to avoid the sanctions of the statute while violating its substance. “A court can properly find wilful blindness only where it can almost be said that the defendant actually knew.” [G. Williams, supra.] In the language of the instruction in this case, the government must prove, “beyond a reasonable doubt, that if the defendant was not actually aware . . . his ignorance in that regard was solely and entirely a result of . . . a conscious purpose to avoid learning the truth.”
… The conviction is affirmed.
ANTHONY M. KENNEDY, Circuit Judge, with whom ELY, HUFSTEDLER and WALLACE, Circuit Judges, join (dissenting).
…At the outset, it is arguable that the “conscious purpose to avoid learning the truth” instruction is inherently inconsistent with the additional mens rea required for [841(a), intent to distribute]. It is difficult to explain that a defendant can specifically intend to distribute a substance unless he knows that he possesses it. In any event, we would not approve the conscious purpose instruction in this case, because it falls short of the scienter independently required under both counts.
… The approach adopted in section 2.02(7) of the Model Penal Code clarifies, and, in important ways restricts, the English doctrine:
When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.
This provision requires an awareness of a high probability that a fact exists, not merely a reckless disregard, or a suspicion followed by a failure to make further inquiry. It also establishes knowledge as a matter of subjective belief, an important safeguard against diluting the guilty state of mind required for conviction. It is important to note that section 2.02(7) is a definition of knowledge, not a substitute for it; as such, it has been cited with approval by the Supreme Court.
In light of the Model Penal Code’s definition, the “conscious purpose” jury instruction is defective in three respects. First, it fails to mention the requirement that Jewell have been aware of a high probability that a controlled substance was in the car. It is not culpable to form “a conscious purpose to avoid learning the truth” unless one is aware of facts indicating a high probability of that truth. To illustrate, a child given a gift-wrapped package by his mother while on vacation in Mexico may form a conscious purpose to take it home without learning what is inside; yet his state of mind is totally innocent unless he is aware of a high probability that the package contains a controlled substance. Thus, a conscious purpose instruction is only proper when coupled with a requirement that one be aware of a high probability of the truth.
The second defect in the instruction as given is that it did not alert the jury that Jewell could not be convicted if he “actually believed” there was no controlled substance in the car. The failure to emphasize, as does the Model Penal Code, that subjective belief is the determinative factor, may allow a jury to convict on an objective theory of knowledge that a reasonable man should have inspected the car and would have discovered what was hidden inside….
Third, the jury instruction clearly states that Jewell could have been convicted even if found ignorant or “not actually aware” that the car contained a controlled substance. This is unacceptable because true ignorance, no matter how unreasonable, cannot provide a basis for criminal liability when the statute requires knowledge. A proper jury instruction based on the Model Penal Code would be presented as a way of defining knowledge, and not as an alternative to it….
Notes and questions on United States v. Jewell
1. Notice that the first two paragraphs of Jewell address one issue – the “housekeeping chore” – and the rest of the opinion addresses a different question. (Let this remind you to resist the temptation to reduce each case to a single issue or “takeaway.”) What is the “housekeeping” issue? Use the first paragraph to refresh or refine your understanding of the term “general intent” crime. In what sense is the federal controlled substance statute here a “specific intent” crime rather than a general intent one?
2. Notice also that the majority distinguishes between knowledge that one possesses a controlled substance and knowledge of the particular type of controlled substance that one possesses. What if a defendant is in possession of one illegal drug, but mistakenly believes that he has a different illegal drug? That is a question about a mistake of fact, and as you have seen in other contexts, whether a mistake of fact matters to liability depends on the mens rea requirements of the relevant statute. Which mental state does 841(a) require? Look carefully at the second paragraph of the Jewell majority opinion. (The next section of this chapter further explores the relevance of drug type and quantity.)
3. Across jurisdictions, drug laws distinguish between “simple possession” (the offense charged in Booth, the first case in this chapter) and a more serious crime of possession with intent to distribute. Charles Jewell was charged with a federal “possession with intent to distribute” offense, but notice that this appellate opinion does not address the question whether Jewell did in fact intend to distribute marijuana. Why not? Is it possible to intend to distribute drugs without being certain that you have the drugs?
4. When courts do consider whether evidence is sufficient to prove intent to distribute, they often focus on the quantity of drugs involved, the way the drugs were packaged, and any other items in the defendant’s possession that may suggest drug trafficking, such as a scale or a large amount of cash. If police seize a large quantity of drugs, it will be difficult for the defendant to avoid a distribution charge. But even when the total quantity of drugs is relatively small, prosecutors sometimes pursue and obtain distribution convictions. See, e.g., Cotton v. State, 686 S.E.2d 805 (Ct. App. Ga. 2009) (finding evidence sufficient to support conviction for possession with intent to distribute when police found four “nickel” bags of marijuana, with a total weight of 2.7 grams, and \$60 in cash in defendant’s car).
5. Consider carefully the distinctions between the actual jury instruction given in Jewell and the Model Penal Code instruction that the dissent would require. Would the evidence in this case have supported a conviction even under the MPC approach?
6. The Jewell majority uses legislative purpose to argue for a broader reading of the statute, referring to “the Drug Control Act’s general purpose to deal more effectively ‘with the growing menace of drug abuse in the United States.’” Should the general concern to address the “menace of drug abuse” always lead to the broadest interpretations of drug laws? Such an interpretive principle would be the inverse of a rule of lenity – a rule of severity with regard to drug offenses.
Drug Offenses: The Relevance of Type and Quantity
Iowa Code Ann. 204.401(2) [recodified; update reference]
[I]t is unlawful for a person to create, deliver, or possess with intent to deliver … a simulated controlled substance….
STATE of Iowa, Appellee
v.
Robert Eric FREEMAN, Appellant
Supreme Court of Iowa
450 N.W.2d 826
Jan. 24, 1990
McGIVERIN, Chief Justice.
The facts of this case are not disputed. The defendant, Robert Eric Freeman, agreed to sell a controlled substance, cocaine, to Keith Hatcher. Unfortunately for Freeman, Hatcher was cooperating with the government. Hatcher gave Freeman \$200, and Freeman gave Hatcher approximately two grams of what was supposed to be cocaine. To everyone’s surprise, the “cocaine” turned out to be acetaminophen. Acetaminophen is not a controlled substance.
Freeman was convicted at a bench trial of delivering a simulated controlled substance with respect to a substance represented to be cocaine, in violation of Iowa Code section 204.401(2)(a). The sole question presented by Freeman’s appeal is whether he can be convicted of delivering a simulated controlled substance when, in fact, he believed he was delivering and intended to deliver cocaine….
I. The statutory framework. Iowa Code section 204.401(2) provides, in relevant part:
[I]t is unlawful for a person to create, deliver, or possess with intent to deliver … a simulated controlled substance….
The term “simulated controlled substance” is defined by Iowa Code section 204.101(27):
Simulated controlled substance ” means a substance which is not a controlled substance but which is expressly represented to be a controlled substance, or a substance which is not a controlled substance but which is impliedly represented to be a controlled substance and which because of its nature, packaging, or appearance would lead a reasonable person to believe it to be a controlled substance.
(Emphasis added.) Violation of section 204.401(2) with respect to a simulated controlled substance represented to be cocaine is a class “C” felony. Iowa Code § 204.401(2)(a).
II. Scienter and the offense of delivery of a simulated controlled substance. Our cases indicate that knowledge of the nature of the substance delivered is an imputed element of section 204.401(1) offenses. See, e.g., State v. Osmundson (Iowa 1976) (knowledge an imputed element of offense of delivery of a controlled substance); Cf. State v. Duncan (Iowa 1987) (knowledge an imputed element of delivery of an imitation controlled substance under Iowa Code chapter 204A). Proof of such knowledge has been required to separate those persons who innocently commit the overt acts of the offense from those persons who commit the overt acts of the offense with scienter, or criminal intent.
The Iowa Code prohibits delivery of [actual] controlled substances and imitation controlled substances, as well as delivery of counterfeit substances, in language nearly identical to that prohibiting delivery of simulated controlled substances [emphasis added]…. Seizing upon the similarity of the statutory prohibitions, Freeman argues that he cannot be convicted of delivering a simulated controlled substance because he mistakenly believed he was delivering and intended to deliver an actual controlled substance.
We disagree. Freeman’s construction of section 204.401(2) would convert the offense of delivery of a simulated controlled substance into one requiring knowing misrepresentation of the nature of the substance delivered. The statute clearly does not require knowing misrepresentation of the nature of the substance delivered.
Reading sections 204.401(2) and 204.101(27) together shows that the gist of this offense is knowing representation of a substance to be a controlled substance and delivery of a noncontrolled substance, rather than knowing misrepresentation and delivery. As one court explained under similar circumstances, statutes like section 204.401(2) are designed “to discourage anyone from engaging or appearing to engage in the narcotics traffic rather than to define the contractual rights of the pusher and his victim….” People v. Ernst (Cal. 1975)…
Freeman’s mistaken belief regarding the substance he delivered cannot save him from conviction. Mistake of fact is a defense to a crime of scienter or criminal intent only where the mistake precludes the existence of the mental state necessary to commit the crime. See Model Penal Code § 2.04(2) (1962) (“Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed.”). In this case, Freeman would not be innocent of wrongdoing had the situation been as he supposed; rather, he would be guilty of delivering a controlled substance. His mistake is no defense. The scienter required to hold him criminally responsible for committing the overt acts of the charged offense is present regardless of the mistake. Freeman knowingly represented to Hatcher that the substance he delivered was cocaine.
In conclusion, we hold that a person who delivers a substance that is not a controlled substance, but who knowingly represents the substance to be a controlled substance, commits the offense of delivery of a simulated controlled substance regardless of whether the person believed that the substance was controlled or not controlled.
Delivery of a simulated controlled substance is not a consumer fraud offense. Freeman attempted and intended to sell cocaine. The fact that Freeman was fooled as much as his customer is no defense to the charge in this case.
Notes and questions on State v. Freeman
1. Do defendants convicted of drug offenses need to know which specific drug they have? As noted above in the discussion of Jewell, drug offenses typically require the defendant to know that he possesses “a controlled substance,” but the defendant need not know which particular controlled substance he possesses. Thus, a defendant who believes he possesses heroin, but actually possesses a substance that turns out to be cocaine, can be convicted of possession of cocaine even if the penalties for cocaine possession are more severe. See, e.g., United States v. Barbosa, 271 F.3d 438, 450-451 (3rd Cir. 2001). For further review of mistakes of fact, you could look back at United States v. Coffman in Chapter Five. As noted there, whether a mistake of fact is relevant to criminal liability depends on the mens rea requirement of the particular crime that is charged.
2. State v. Freeman raises a slightly different issue from the confusion of cocaine and heroin: here the defendant thought that he possessed cocaine, but actually possessed something that was not a controlled substance at all. In many jurisdictions, this situation would lead to a charge of attempted possession of cocaine. (We consider attempt doctrine, including its application to drug offenses, in more detail in the next chapter.) In Iowa, though, the simulated controlled substance law makes it unnecessary to rely on attempt doctrine.
3. The Freeman court refers to contract law claims, and to consumer fraud, to distinguish the Iowa simulated controlled substance offense from either of those areas of law. How do the underlying purposes of the simulated controlled substance law differ from those other types of law?
4. The sentences for different types and amounts of controlled substances can vary widely. How do legislatures and other policymakers decide how to punish different types of narcotics? One of the most controversial criminalization choices of American drug law concerned different penalties for crack cocaine and powder cocaine, discussed in Chapter Three in relation to United States v. Armstrong. Until 2010, federal sentencing law used a 100:1 ratio under which a defendant would need 100 times as much powder cocaine to receive the same mandatory minimum sentence that was imposed for crack cocaine. Because crack cocaine use and distribution was more prevalent among Black Americans, while powder cocaine had higher portions of white users and distributors, this stark difference in sentences had a significant impact on the racial composition of the U.S. prison population. Defenders of the 100:1 ratio argued that crack was more dangerous than powder cocaine, but the evidence of greater danger was contested, and in any case it is unclear how anyone could establish that crack is 100 times more dangerous. In 2010, Congress adjusted the ratio but did not entirely eliminate the more severe penalties for crack. The current crack-powder ratio is about 18:1.
5. Just as the Freeman court finds that the defendant need not know the exact nature of the substance he possessed, many courts find that defendants need not know the exact quantity of drugs to be convicted of possessing that amount. This approach is controversial, though, because sentences for drug crimes are typically linked to the quantity involved. In Whitaker v. People, 48 P.3d 555 (Co. 2002), the defendant was charged with possession of over 1000 grams of methamphetamine. Police had approached David Whitaker on a Greyhound bus in Colorado and asked to search a black bag near him. Whitaker denied ownership of the bag, but allowed police to search it. It contained 8.8 pounds of methamphetamine. Whitaker was convicted and sentenced to 20 years imprisonment based on the quantity of drugs. On appeal to the Colorado Supreme Court, he argued that the prosecution had failed to prove that he knew the quantity of drugs in the bag. The Colorado Supreme Court held that drug quantity was a sentencing factor, not an element of the offense. That distinction is important, because the prosecution’s burden of proof as outlined in Winship generally extends only to elements of the offense and not to sentencing factors. (There are caveats and exceptions, about which you can learn more in a sentencing or advanced criminal procedure course.) As a result, in Colorado a possession conviction does not require the defendant to know the quantity of drugs possessed. “Any amount of drugs, even less than a usable quantity, can support a conviction” under the state’s possession statute, the Whitaker court stated.
6. Measuring drug quantity may seem like a scientific, empirical question, but this aspect of drug law has produced some noteworthy disputes. In Chapman v. United States, 500 U.S. 353 (1991), the Supreme Court considered a federal statute that imposed a five-year mandatory minimum sentence on a person convicted of possessing one gram or more of “a mixture or substance containing” LSD. Pure LSD doesn’t weigh very much, but the drug is typically sold mixed into a “carrier medium” such as blotter paper or sugar cubes. In Chapman, the defendants possessed only about 50 milligrams of LSD, but it was integrated into blotter paper that weighed about 5.7 grams. The defendants argued that their sentence should be based on the weight of the actual drug, not the drug plus the medium. The weights of different carriers vary widely, and to include the carrier could meant that those who possess large quantities of the pure substance are punished less than those who possess very small quantities of the substance in a carrier medium. The Court rejected this argument and held that the combined weight of the LSD and the carrier could be used to trigger the mandatory minimum.
7. The quantity of drugs involved in an offense can also depend on enforcement choices. For example, law enforcement officials working undercover can ask to purchase, or offer to sell, a given amount of drugs in order to trigger particular sentencing consequences. Or undercover agents may stage multiple “controlled buys” in order to charge multiple counts rather than a single charge.
Check Your Understanding (7-2)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Gun Offenses
Gun possession offenses sometimes involve categorical bans of a particular type of weapon. For example, “assault weapons,” or certain semi-automatic weapons, were banned under a 1994 federal law. That law had a ten-year time limit, and Congress allowed it to lapse in 2004. But more frequently, gun laws do not involve categorical bans; instead, they specify certain categories of people who are not allowed to possess weapons. Persons with prior criminal convictions (or specified types of convictions) are frequently prohibited from weapons possession; other restricted categories include children and persons with identified mental health issues. Another fairly standard regulatory approach is to require a license for weapon possession, and to impose criminal sanctions on persons who possess guns without the requisite license or permit. The first case below involves a statute structured as a general ban on (unlicensed) weapons possession, but with exceptions for various categories of person, including correctional officers. Penal codes can be complicated, as this case illustrates: at least four different statutes are relevant to the resolution of this case.
N.Y. Penal Law §265.02 [as of 1983; now revised]
A person is guilty of criminal possession of a weapon in the third degree when …
(4) [h]e possesses any loaded firearm….
N.Y. Penal Law § 265 .20 Exemptions
[Section 265.02 and other sections] shall not apply to:
• Possession of any of the weapons, instruments, appliances, or substances specified by…
• (c) peace officers as defined by … the criminal procedure law.
N.Y. Crim. Pro. Ch. 966, §1.20(33) [as of 1970; repealed 1980]
[A peace officer includes]
… [a]n attendant, or an official, or guard of any state prison or any penal correctional institution….
(A fourth statute relevant to the next case is included within the judicial opinion.)
People of the State of New York
v.
Julio MARRERO
Court of Appeals of New York
507 N.E.2d 1068
April 2, 1987
BELLACOSA, J.
The defense of mistake of law is not available to a Federal corrections officer arrested in a Manhattan social club for possession of a loaded .38 caliber automatic pistol who claimed he mistakenly believed he was entitled … to carry a handgun without a permit as a peace officer.
…Defendant was a Federal corrections officer in Danbury, Connecticut, and asserted that status at the time of his arrest in 1977. He claimed at trial that there were various interpretations of fellow officers and teachers, as well as the peace officer statute itself, upon which he relied for his mistaken belief that he could carry a weapon with legal impunity.
The starting point for our analysis is the New York mistake statute as an outgrowth of the dogmatic common-law maxim that ignorance of the law is no excuse. The central issue is whether defendant’s personal misreading or misunderstanding of a statute may excuse criminal conduct in the circumstances of this case.
… The revisors of New York’s Penal Law intended no fundamental departure from this common-law rule in Penal Law § 15.20, which provides in pertinent part:
Ҥ 15.20. Effect of ignoranceor mistake upon liability.
* * *
“2. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment * * * (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency, or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.”
This section was added to the Penal Law … in 1965… When this provision was first proposed, commentators viewed the new language as codifying “the established common law maxim on mistake of law, while at the same time recognizing a defense when the erroneous belief is founded upon an ‘official statement of the law.’ ” (Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1486 [1964]).
The defendant claims as a first prong of his defense that he is entitled to raise the defense of mistake of law under section 15.20 (2) (a) because his mistaken belief that his conduct was legal was founded upon an official statement of the law contained in the statute itself. Defendant argues that his mistaken interpretation of the statute was reasonable in view of the alleged ambiguous wording of the peace officer exemption statute, and that his “reasonable” interpretation of an “official statement” is enough to satisfy the requirements of subdivision (2) (a)….
The prosecution … counters defendant’s argument by asserting that one cannot claim the protection of mistake of law under section 15.20 (2) (a) simply by misconstruing the meaning of a statute but must instead establish that the statute relied on actually permitted the conduct in question and was only later found to be erroneous. To buttress that argument, the People analogize New York’s official statement defense to the approach taken by the Model Penal Code (MPC). Section 2.04 of the MPC provides:
“Section 2.04. Ignorance or Mistake.
* * *
“(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when * * * (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment” (emphasis added).
Although the drafters of the New York statute did not adopt the precise language of the Model Penal Code provision with the emphasized clause, it is evident and has long been believed that the Legislature intended the New York statute to be similarly construed. In fact, the legislative history of section 15.20 is replete with references to the influence of the Model Penal Code provision… New York’s drafters may even have concluded that the extra clause in the MPC was mere surplusage in view of the clear exceptionability of the mistake authorization in the first instance….
It was early recognized that the “official statement” mistake of law defense was a statutory protection against prosecution based on reliance of a statute that did in fact authorize certain conduct. “It seems obvious that society must rely on some statement of the law, and that conduct which is in fact ‘authorized’ … should not be subsequently condemned. The threat of punishment under these circumstances can have no deterrent effect unless the actor doubts the validity of the official pronouncement–a questioning of authority that is itself undesirable” (Note, 64 Colum. L. Rev. at 1486 (emphasis added). While providing a narrow escape hatch, the idea was simultaneously to encourage the public to read and rely on official statements of the law, not to have individuals conveniently and personally question the validity and interpretation of the law and act on that basis. If later the statute was invalidated, one who mistakenly acted in reliance on the authorizing statute would be relieved of criminal liability. That makes sense and is fair. To go further does not make sense and would create a legal chaos based on individual selectivity.
In the case before us, the underlying statute never in fact authorized the defendant’s conduct; the defendant only thought that the statutory exemptions permitted his conduct when, in fact, the primary statute clearly forbade his conduct. …[E]ven the exemption statute did not permit this defendant to possess the weapon. It would be ironic at best and an odd perversion at worst for this court now to declare that the same defendant is nevertheless free of criminal responsibility.
The “official statement” component in the mistake of law defense in both paragraphs (a) and (d) adds yet another element of support for our interpretation and holding. Defendant tried to establish a defense under Penal Law § 15.20 (2) (d) as a second prong. But the interpretation of the statute relied upon must be “officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.” …[N]one of the interpretations which defendant proffered meets the requirements of the statute….
It must also be emphasized that, while our construction of Penal Law § 15.20 provides for narrow application of the mistake of law defense, it does not, as the dissenters contend, “rule out any defense based on mistake of law.” To the contrary, mistake of law is a viable exemption in those instances where an individual demonstrates an effort to learn what the law is, relies on the validity of that law and, later, it is determined that there was a mistake in the law itself.
The modern availability of this defense is based on the theory that where the government has affirmatively, albeit unintentionally, misled an individual as to what may or may not be legally permissible conduct, the individual should not be punished as a result. This is salutary and enlightened and should be firmly supported in appropriate cases. However, it also follows that where, as here, the government is not responsible for the error (for there is none except in the defendant’s own mind), mistake of law should not be available as an excuse….
We recognize that some legal scholars urge that the mistake of law defense should be available more broadly where a defendant misinterprets a potentially ambiguous statute not previously clarified by judicial decision and reasonably believes in good faith that the acts were legal…. In this case, the forbidden act of possessing a weapon is clear and unambiguous, and only by the interplay of a double exemption does defendant seek to escape criminal responsibility, i.e., the peace officer statute and the mistake statute.
We conclude that the better and correctly construed view is that the defense should not be recognized, except where specific intent is an element of the offense or where the misrelied-upon law has later been properly adjudicated as wrong. Any broader view fosters lawlessness. It has been said in support of our preferred view in relation to other available procedural protections: “A statute … which is so indefinite that it ‘either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law’ and is unconstitutional. If the court feels that a statute is sufficiently definite to meet this test, it is hard to see why a defense of mistake of law is needed….” (Hall and Seligman, Mistake of Law and Mens Rea, 8 U Chi L Rev 641, 667 [1941]).
Strong public policy reasons underlie the legislative mandate and intent which we perceive in rejecting defendant’s construction of New York’s mistake of law defense statute. If defendant’s argument were accepted, the exception would swallow the rule. Mistakes about the law would be encouraged, rather than respect for and adherence to law. There would be an infinite number of mistake of law defenses which could be devised from a good-faith, perhaps reasonable but mistaken, interpretation of criminal statutes, many of which are concededly complex. Even more troublesome are the opportunities for wrongminded individuals to contrive in bad faith solely to get an exculpatory notion before the jury…. Our holding comports with a statutory scheme which was not designed to allow false and diversionary stratagems to be provided for many more cases than the statutes contemplated. This would not serve the ends of justice but rather would serve game playing and evasion from properly imposed criminal responsibility.
Accordingly, the order of the Appellate Division should be affirmed.
HANCOCK, Jr., J., dissenting.
…The basic difference which divides the court may be simply put. Suppose the case of a man who has committed an act which is criminal not because it is inherently wrong or immoral but solely because it violates a criminal statute. He has committed the act in complete good faith under the mistaken but entirely reasonable assumption that the act does not constitute an offense because it is permitted by the wording of the statute. Does the law require that this man be punished? The majority says that it does and holds that (1) Penal Law § 15.20(2)(a) must be construed so that the man is precluded from offering a defense based on his mistake of law and (2) such construction is compelled by prevailing considerations of public policy and criminal jurisprudence. We take issue with the majority on both propositions.
There can be no question that under the view that the purpose of the criminal justice system is to punish blameworthiness or “choosing freely to do wrong”, our supposed man who has acted innocently and without any intent to do wrong should not be punished… Since he has not knowingly committed a wrong there can be no reason for society to exact retribution. Because the man is law-abiding and would not have acted but for his mistaken assumption as to the law, there is no need for punishment to deter him from further unlawful conduct. Traditionally, however, under the ancient rule of Anglo-American common law that ignorance or mistake of law is no excuse, our supposed man would be punished.
The maxim “ignorantia legis neminem excusat” finds its roots in Medieval law when the “actor’s intent was irrelevant since the law punished the act itself. …Although the common law has gradually evolved from its origins in Anglo-Germanic tribal law (adding the element of intent [mens rea] and recognizing defenses based on the actor’s mental state…) the dogmatic rule that ignorance or mistake of law is no excuse has remained unaltered. Various justifications have been offered for the rule, but all are frankly pragmatic and utilitarian–preferring the interests of society (e.g., in deterring criminal conduct, fostering orderly judicial administration, and preserving the primacy of the rule of law) to the interest of the individual in being free from punishment except for intentionally engaging in conduct which he knows is criminal…
Today there is widespread criticism of the common-law rule mandating categorical preclusion of the mistake of law defense… The utilitarian arguments for retaining the rule have been drawn into serious question but the fundamental objection is that it is simply wrong to punish someone who, in good-faith reliance on the wording of a statute, believed that what he was doing was lawful. …This basic objection to the maxim “ignorantia legis neminem excusat” may have had less force in ancient times when most crimes consisted of acts which by their very nature were recognized as evil (malum in se). In modern times, however, with the profusion of legislation making otherwise lawful conduct criminal (malum prohibitum), the “common law fiction that every man is presumed to know the law has become indefensible in fact or logic.”…
With this background we proceed to a discussion of our disagreement with the majority’s construction of Penal Law § 15.20(2)(a)….
It is difficult to imagine a case more squarely within the wording of Penal Law § 15.20 (2) (a) or one more fitted to what appears clearly to be the intended purpose of the statute than the one before us. For this reason it is helpful to discuss the statute and its apparent intended effect in the light of what defendant contends was his mistaken belief founded on an official statement of the law contained in a statute.
Defendant stands convicted after a jury trial of criminal possession of a weapon in the third degree for carrying a loaded firearm without a license. He concedes that he possessed the unlicensed weapon but maintains that he did so under the mistaken assumption that his conduct was permitted by law. Although at the time of his arrest he protested that he was a Federal corrections officer and exempt from prosecution under the statute, defendant was charged with criminal possession of a weapon in the third degree. On defendant’s motion before trial the court dismissed the indictment, holding that he was a peace officer as defined [by state law] and, therefore, exempted … from prosecution… [The dissent explained in a footnote that state law defined “peace officers” to include “correction officers of any state correction facility or of any penal correctional institution.”] The … Appellate Division reversed and reinstated the indictment, [holding that only State correction officers were exempted from prosecution under 265.02]…. [Defendant] was convicted and the Appellate Division has affirmed.
Defendant’s mistaken belief that, as a Federal corrections officer, he could legally carry a loaded weapon without a license was based on the express exemption [for] “peace officers” … and on his reading of the statutory definition for “peace officer” … as meaning a correction officer “of any penal correctional institution” (emphasis added), including an institution not operated by New York State. Thus, he concluded erroneously that, as a corrections officer in a Federal prison, he was a “peace officer”… This mistaken belief, based in good faith … is, defendant contends, the precise sort of “mistaken belief … founded upon an official statement of the law contained in … a statute or other enactment” which gives rise to a mistake of law defense under Penal Law § 15.20(2)(a). He points out, of course, that when he acted in reliance on his belief he had no way of foreseeing that a court would eventually resolve the question of the statute’s meaning against him….
The majority, however, has accepted the People’s argument that to have a defense under Penal Law § 15.20 (2) (a) “a defendant must show that the statute permitted his conduct, not merely that he believed it did” (respondent’s brief, at 26 [emphasis added]). Here, of course, defendant cannot show that the statute permitted his conduct. To the contrary, the question has now been decided by the Appellate Division and it is settled that defendant was not exempt under Penal Law § 265.20 (a) (1) (a). Therefore, the argument goes, defendant can have no mistake of law defense. While conceding that reliance on a statutory provision which is later found to be invalid would constitute a mistake of law defense (see, Model Penal Code § 2.04 [3] [b] [i]), the People’s flat position is that “one’s mistaken reading of a statute, no matter how reasonable or well intentioned, is not a defense” ….
[That view] leads to an anomaly: only a defendant who is not mistaken about the law when he acts has a mistake of law defense. In other words, a defendant can assert a defense under Penal Law § 15.20(2)(a) only when his reading of the statute is correct–not mistaken. such construction is obviously illogical; it strips the statute of the very effect intended by the Legislature in adopting the mistake of law defense. The statute is of no benefit to a defendant who has proceeded in good faith on an erroneous but concededly reasonable interpretation of a statute, as defendant presumably has. An interpretation of a statute which produces an unreasonable or incongruous result and one which defeats the obvious purpose of the legislation and renders it ineffective should be rejected
Finally, the majority’s disregard of the natural and obvious meaning of Penal Law § 15.20(2)(a) … amounts, we submit, to a rejection of the obvious legislative purposes and policies favoring jurisprudential reform underlying the statute’s enactment. It is self-evident that in enacting Penal Law § 15.20(2) … the Legislature intended to effect a needed reform by abolishing what had long been considered the unjust archaic common-law rule totally prohibiting mistake of law as a defense. Had it not so intended it would simply have left the common-law rule intact. In place of the abandoned “ignorantia legis” common-law maxim the Legislature enacted a rule which permits no defense for ignorance of law but allows a mistake of law defense in specific instances, including the one presented here: when the defendant’s erroneous belief is founded on an “official statement of the law” ….
The majority construes the statute, however, so as to rule out any defense based on mistake of law. In so doing, it defeats the only possible purpose for the statute’s enactment and resurrects the very rule which the Legislature rejected….
Instead, the majority bases its decision on an analogous provision in the Model Penal Code and concludes that despite its totally different wording and meaning Penal Law § 15.20(2)(a) should be read as if it were Model Penal Code § 2.04 (3)(b)(i). But New York in revising the Penal Law did not adopt the Model Penal Code. As in New Jersey, which generally adopted the Model Penal Code but added one section which is substantially more liberal, New York followed parts of the Model Penal Code provisions and rejected others….
…In respect to the defense based upon an actor’s reliance on an official statement of law contained in a statute the Model Penal Code and the New York statute are totally dissimilar…. The Model Penal Code does not permit a defense for someone who acts in good faith upon a mistaken belief that a specific statute authorizes his conduct. The defense is limited to an act in reliance on an official statement of law in a statute “afterward determined to be invalid or erroneous. The New York statute, in contrast, specifically permits the defense when the actor proceeds under “a mistaken belief” that his conduct does not “constitute an offense” when that “mistaken belief is founded upon an official statement of the law contained in … a statute” ….
Thus, the precise phrase in the Model Penal Code limiting the defense … to reliance on a statute “afterward determined to be invalid or erroneous” … is omitted from Penal Law § 15.20(2)(a). How the Legislature can be assumed to have enacted the very language which it has specifically rejected is not explained….
As an alternate interpretation of Penal Law § 15.20(2)(a) the majority suggests that the Legislature intended that the statute should afford a defense only in cases involving acts mala in se … “where specific intent is an element of the offense”… Again such construction is at odds with the plain wording of Penal Law § 15.20(2)(a) and finds no support in the statutory history or the literature. There are, moreover, other fundamental objections to such construction which, we believe, rule out any possibility that the Legislature could have intended it. The essential quality of evil or immorality inherent in crimes mala in se (murder, robbery, kidnapping, etc.) is incompatible with the notion that the actor could have been operating “under a mistaken belief that [his conduct] [did] not, as a matter of law, constitute an offense.” There are no policy or jurisprudential reasons for the Legislature to recognize a mistake of law defense to such crimes. On the contrary, it is not with such inherently evil crimes but with crimes which are mala prohibita–i.e., “the vast network of regulatory offenses which make up a large part of today’s criminal law”–where reasons of policy and fairness call for a relaxation of the strict “ignorantia legis” maxim to permit a limited mistake of law defense.
…Any fair reading of the majority opinion, we submit, demonstrates that the decision to reject a mistake of law defense is based on considerations of public policy and on the conviction that such a defense would be bad, rather than on an analysis of CPL 15.20 (2) (a) under the usual principles of statutory construction….
We believe that the concerns expressed by the majority are matters which properly should be and have been addressed by the Legislature. We note only our conviction that a statute which recognizes a defense based on a man’s good-faith mistaken belief founded on a well-grounded interpretation of an official statement of the law contained in a statute is a just law. The law embodies the ideal of contemporary criminal jurisprudence “that punishment should be conditioned on a showing of subjective moral blameworthiness”….
…We do not believe that permitting a defense in this case will produce the grievous consequences the majority predicts. The unusual facts of this case seem unlikely to be repeated. …
But these questions are now beside the point, for the Legislature has given its answer by providing that someone in defendant’s circumstances should have a mistake of law defense. Because this decision deprives defendant of what, we submit, the Legislature intended that he should have, we dissent.
Notes and questions on Marrero
1. Marrero is a complicated case! Don’t worry if it takes some time to make sense of it. Part of the difficulty is that there are multiple statutes at stake: a New York law that bans weapons possession without a special license, a different state law that exempts “peace officers” from the general ban on unlicensed weapons possession, still another state law that defines the term “peace officers,” and finally, a state statute that provides an affirmative defense for those who mistakenly believe that their conduct is not illegal, if the mistaken belief is “founded upon an official statement of law.” The first three statutes just listed are representative of one major aspect of American gun regulation: gun laws tend to identify categories of people who may, or (more often) may not, possess guns. In contrast to prohibitions of controlled substances, which are usually generally applicable to all persons, prohibitions of guns are often directed to specific groups, such as persons with felony convictions or persons with mental illness.
2. The mistake of law arguments are where things get much more complicated. Julio Marrero mistakenly believed that he was a “peace officer” under New York law and thus permitted to carry a gun. But was his mistake “founded upon an official statement of law”? Under the majority’s approach, could any misunderstanding of a statute count as a belief “founded upon an official statement of law”? Under the dissent’s approach, is every misunderstanding of a statute “founded upon an official statement of law”?
3. The dissent in Marrero noted in passing that the New Jersey had adopted a mistake of law defense “more liberal” than the Model Penal Code. In a footnote, the dissent elaborated: “In addition to permitting defenses based on ignorance of the law and reasonable reliance on official statements afterward determined to be invalid or erroneous, the New Jersey statute provides a defense, under the following broad provision, when: ‘(3) The actor otherwise diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense in circumstances in which a law-abiding and prudent person would also so conclude.’” Would Marrero have been able to avoid conviction for weapons possession if the New Jersey mistake of law defense applied to him?
4. The dissenting opinion refers to the “unusual facts of this case.” You can learn more of those unusual facts in a detailed student note published shortly after the decision: David De Gregorio, People v. Marrero and Mistake of Law, 54 Brook. L. Rev. 229 (1988). Julio Marrero was at a nightclub with his girlfriend when police arrived in response to a report of a man at the club carrying a pistol. One officer reportedly noticed a bulge under Marrero’s jacket and approached him with his own weapon drawn. (Marrero testified that he first became aware of the officers when he saw not one but three guns pointed at him; there were apparently only two arresting officers, and it is unclear whether there really were three guns aimed at Marrero.) Marrero moved toward the officers, possibly reaching for his own gun, and the officers then arrested him and seized his pistol. They found a second gun in Marrero’s girlfriend’s purse, and an imitation weapon in the possession of a friend of Marrero who was also present. Marrero testified that he regularly carried a gun because he feared for his life after being threatened by prisoners or former prisoners. He had taken several criminal justice courses at Hostos College in the Bronx, and had concluded that as a federal corrections officer he qualified as a “peace officer” under New York state law.
Which of these facts, if any, do you think the dissent found “unusual”? Do any of the above facts make a difference to the way this case should have turned out, in your view?
5. As noted in the introduction to this chapter, there is evidence that criminal regulations of guns have a disproportionate impact on persons of color. Disparities in other areas of law have contributed to an overrepresentation of persons of color among those who have criminal convictions, and this group is frequently banned from weapons possession. Moreover, police may simply be more likely to discover a weapon when it is possessed by a Black or brown person, since these groups are disproportionately targeted for police investigative activity. When a New York gun restriction was challenged before the Supreme Court recently, a group of Black defense lawyers filed an amicus brief, urging the Court to overturn the New York law due to its racially disproportionate impact. See Brief of the Black Attorneys of Legal Aid, et al, in New York State Rifle & Pistol Assoc. v. Bruen, 142 S. Ct. 2111 (2022).
6. In other cases involving Second Amendment challenges to gun regulations, the Court has alluded to southern states’ selective disarmament of Black Americans after the Civil War as a reason to treat gun control laws with suspicion. McDonald v. City of Chicago, 561 U.S. 724 (2010). At the same time, the Court has made clear that the Second Amendment right to bear arms does not extend to persons with felony convictions. Under existing constitutional doctrine, a state could not directly prohibit gun possession only among a given racial group, but a felon-in-possession ban is acceptable even if it disproportionately impacts persons of color, so long as there is no proof of an intent to discriminate by race.
Check Your Understanding (7-3)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
26 U.S.C. § 5861 . Prohibited acts
It shall be unlawful for any person—
… d) to receive or possess a firearm which is not registered to him in the National Firearms and Transfer Record….
26 U.S.C. § 5845. Definitions
(a) Firearm.The term “firearm” means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun …
(b) Machinegun.–The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
Harold E. STAPLES, III, Petitioner
v.
UNITED STATES
Supreme Court of the United States
511 U.S. 600
Decided May 23, 1994
Justice THOMAS delivered the opinion of the Court.
I
The National Firearms Act (Act) imposes strict registration requirements on statutorily defined “firearms.” The Act includes within the term “firearm” a machinegun, and further defines a machinegun as “any weapon which shoots, … or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” Thus, any fully automatic weapon is a “firearm” within the meaning of the Act.[1] Under the Act, all firearms must be registered in the National Firearms Registration and Transfer Record maintained by the Secretary of the Treasury. Section 5861(d) makes it a crime, punishable by up to 10 years in prison, for any person to possess a firearm that is not properly registered.
Upon executing a search warrant at petitioner’s home, local police and agents of the Bureau of Alcohol, Tobacco and Firearms (BATF) recovered, among other things, an AR–15 rifle. The AR–15 is the civilian version of the military’s M–16 rifle, and is, unless modified, a semiautomatic weapon. The M–16, in contrast, is a selective fire rifle that allows the operator, by rotating a selector switch, to choose semiautomatic or automatic fire. Many M–16 parts are interchangeable with those in the AR–15 and can be used to convert the AR–15 into an automatic weapon. No doubt to inhibit such conversions, the AR–15 is manufactured with a metal stop on its receiver that will prevent an M–16 selector switch, if installed, from rotating to the fully automatic position. The metal stop on petitioner’s rifle, however, had been filed away, and the rifle had been assembled with an M–16 selector switch and several other M–16 internal parts, including a hammer, disconnector, and trigger. Suspecting that the AR–15 had been modified to be capable of fully automatic fire, BATF agents seized the weapon. Petitioner subsequently was indicted for unlawful possession of an unregistered machinegun in violation of § 5861(d).
At trial, BATF agents testified that when the AR–15 was tested, it fired more than one shot with a single pull of the trigger. It was undisputed that the weapon was not registered… Petitioner testified that the rifle had never fired automatically when it was in his possession. He insisted that the AR–15 had operated only semiautomatically, and even then imperfectly, often requiring manual ejection of the spent casing and chambering of the next round. According to petitioner, his alleged ignorance of any automatic firing capability should have shielded him from criminal liability for his failure to register the weapon. He requested the District Court to instruct the jury that, to establish a violation of § 5861(d), the Government must prove beyond a reasonable doubt that the defendant “knew that the gun would fire fully automatically.”
The District Court rejected petitioner’s proposed instruction and instead charged the jury as follows:
“The Government need not prove the defendant knows he’s dealing with a weapon possessing every last characteristic [which subjects it] to the regulation. It would be enough to prove he knows that he is dealing with a dangerous device of a type as would alert one to the likelihood of regulation.” Tr. 465.
Petitioner was convicted and sentenced to five years’ probation and a \$5,000 fine….
II
Whether or not § 5861(d) requires proof that a defendant knew of the characteristics of his weapon that made it a “firearm” under the Act is a question of statutory construction. As we observed in Liparota v. United States (1985), “[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute.” Thus, we have long recognized that determining the mental state required for commission of a federal crime requires “construction of the statute and … inference of the intent of Congress.” United States v. Balint (1922).
The language of the statute, the starting place in our inquiry, provides little explicit guidance in this case. Section 5861(d) is silent concerning the mens rea required for a violation. It states simply that “[i]t shall be unlawful for any person … to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” Nevertheless, silence on this point by itself does not necessarily suggest that Congress intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal. See Balint, supra. On the contrary, we must construe the statute in light of the background rules of the common law, in which the requirement of some mens rea for a crime is firmly embedded. As we have observed, “[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo–American criminal jurisprudence.” …[W]e have suggested that some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.
According to the Government, however, the nature and purpose of the Act suggest that the presumption favoring mens rea does not apply to this case. The Government argues that Congress intended the Act to regulate and restrict the circulation of dangerous weapons. Consequently, in the Government’s view, this case fits in a line of precedent concerning what we have termed “public welfare” or “regulatory” offenses, in which we have understood Congress to impose a form of strict criminal liability through statutes that do not require the defendant to know the facts that make his conduct illegal. In construing such statutes, we have inferred from silence that Congress did not intend to require proof of mens rea to establish an offense.
For example, in Balint, we concluded that the Narcotic Act of 1914, which was intended in part to minimize the spread of addictive drugs by criminalizing undocumented sales of certain narcotics, required proof only that the defendant knew that he was selling drugs, not that he knew the specific items he had sold were “narcotics” within the ambit of the statute. … As we [later] explained…, Balint dealt with “a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct—awareness of some wrongdoing.”
Such public welfare offenses have been created by Congress, and recognized by this Court, in “limited circumstances.” Typically, our cases recognizing such offenses involve statutes that regulate potentially harmful or injurious items. In such situations, we have reasoned that as long as a defendant knows that he is dealing with a dangerous device of a character that places him “in responsible relation to a public danger,” he should be alerted to the probability of strict regulation, and we have assumed that in such cases Congress intended to place the burden on the defendant to “ascertain at his peril whether [his conduct] comes within the inhibition of the statute.” Thus, we essentially have relied on the nature of the statute and the particular character of the items regulated to determine whether congressional silence concerning the mental element of the offense should be interpreted as dispensing with conventional mens rea requirements.
The Government argues that … all guns, whether or not they are statutory “firearms,” are dangerous devices that put gun owners on notice that they must determine at their hazard whether their weapons come within the scope of the Act. On this understanding, the District Court’s instruction in this case was correct, because a conviction can rest simply on proof that a defendant knew he possessed a “firearm” in the ordinary sense of the term.
The Government seeks support for its position from our decision in United States v. Freed (1971), which involved a prosecution for possession of unregistered grenades under § 5861(d). [A grenade is a type of “firearm” under the Act.] The defendant knew that the items in his possession were grenades, and we concluded that § 5861(d) did not require the Government to prove the defendant also knew that the grenades were unregistered. …[W]e suggested that the Act “is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act.” Grenades, we explained, “are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint.” But that reasoning provides little support for dispensing with mens rea in this case.
As the Government concedes, Freed did not address the issue presented here. In Freed, we decided only that § 5861(d) does not require proof of knowledge that a firearm is unregistered. The question presented by a defendant who possesses a weapon that is a “firearm” for purposes of the Act, but who knows only that he has a “firearm” in the general sense of the term, was not raised or considered. And our determination that a defendant need not know that his weapon is unregistered suggests no conclusion concerning whether § 5861(d) requires the defendant to know of the features that make his weapon a statutory “firearm”; different elements of the same offense can require different mental states. Moreover, our analysis in Freed likening the Act to the public welfare statute in Balint rested entirely on the assumption that the defendant knew that he was dealing with hand grenades—that is, that he knew he possessed a particularly dangerous type of weapon (one within the statutory definition of a “firearm”), possession of which was not entirely “innocent” in and of itself. The predicate for that analysis is eliminated when, as in this case, the very question to be decided is whether the defendant must know of the particular characteristics that make his weapon a statutory firearm.
…In glossing over the distinction between grenades and guns, the Government ignores the particular care we have taken to avoid construing a statute to dispense with mens rea where doing so would “criminalize a broad range of apparently innocent conduct.” In Liparota, we considered a statute that made unlawful the unauthorized acquisition or possession of food stamps. We determined that the statute required proof that the defendant knew his possession of food stamps was unauthorized, largely because dispensing with such a mens rea requirement would have resulted in reading the statute to outlaw a number of apparently innocent acts. Our conclusion that the statute should not be treated as defining a public welfare offense rested on the commonsense distinction that a “food stamp can hardly be compared to a hand grenade.”
Neither, in our view, can all guns be compared to hand grenades. Although the contrast is certainly not as stark as that presented in Liparota, the fact remains that there is a long tradition of widespread lawful gun ownership by private individuals in this country. Such a tradition did not apply to the possession of hand grenades in Freed or to the selling of dangerous drugs that we considered in Balint. In fact, in Freed we construed § 5861(d) under the assumption that “one would hardly be surprised to learn that possession of hand grenades is not an innocent act.” Here, the Government essentially suggests that we should interpret the section under the altogether different assumption that “one would hardly be surprised to learn that owning a gun is not an innocent act.” That proposition is simply not supported by common experience. Guns in general are not “deleterious devices or products or obnoxious waste materials,” that put their owners on notice that they stand “in responsible relation to a public danger.”
The Government protests that guns, unlike food stamps, but like grenades and narcotics, are potentially harmful devices…. But that an item is “dangerous,” in some general sense, does not necessarily suggest, as the Government seems to assume, that it is not also entirely innocent. Even dangerous items can, in some cases, be so commonplace and generally available that we would not consider them to alert individuals to the likelihood of strict regulation. As suggested above, despite their potential for harm, guns generally can be owned in perfect innocence. Of course, we might surely classify certain categories of guns—no doubt including the machineguns, sawed-off shotguns, and artillery pieces that Congress has subjected to regulation—as items the ownership of which would have the same quasi-suspect character we attributed to owning hand grenades…. But precisely because guns falling outside those categories traditionally have been widely accepted as lawful possessions, their destructive potential, while perhaps even greater than that of some items we would classify along with narcotics and hand grenades, cannot be said to put gun owners sufficiently on notice of the likelihood of regulation to justify interpreting § 5861(d) as not requiring proof of knowledge of a weapon’s characteristics.
On a slightly different tack, the Government suggests that guns are subject to an array of regulations at the federal, state, and local levels that put gun owners on notice that they must determine the characteristics of their weapons and comply with all legal requirements. But regulation in itself is not sufficient to place gun ownership in the category of the sale of narcotics in Balint. The food stamps at issue in Liparota were subject to comprehensive regulations, yet we did not understand the statute there to dispense with a mens rea requirement. Moreover, despite the overlay of legal restrictions on gun ownership, we question whether regulations on guns are sufficiently intrusive that they impinge upon the common experience that owning a gun is usually licit and blameless conduct. Roughly 50 percent of American homes contain at least one firearm of some sort, and in the vast majority of States, buying a shotgun or rifle is a simple transaction that would not alert a person to regulation any more than would buying a car.
If we were to accept as a general rule the Government’s suggestion that dangerous and regulated items place their owners under an obligation to inquire at their peril into compliance with regulations, we would undoubtedly reach some untoward results. Automobiles, for example, might also be termed “dangerous” devices and are highly regulated at both the state and federal levels. Congress might see fit to criminalize the violation of certain regulations concerning automobiles, and thus might make it a crime to operate a vehicle without a properly functioning emission control system. But we probably would hesitate to conclude on the basis of silence that Congress intended a prison term to apply to a car owner whose vehicle’s emissions levels, wholly unbeknownst to him, began to exceed legal limits between regular inspection dates.
Here, there can be little doubt that, as in Liparota, the Government’s construction of the statute potentially would impose criminal sanctions on a class of persons whose mental state—ignorance of the characteristics of weapons in their possession—makes their actions entirely innocent. …[I]n the Government’s view, any person who has purchased what he believes to be a semiautomatic rifle or handgun, or who simply has inherited a gun from a relative and left it untouched in an attic or basement, can be subject to imprisonment, despite absolute ignorance of the gun’s firing capabilities, if the gun turns out to be an automatic.
We concur in the Fifth Circuit’s conclusion on this point: “It is unthinkable to us that Congress intended to subject such law-abiding, well-intentioned citizens to a possible ten-year term of imprisonment if … what they genuinely and reasonably believed was a conventional semi-automatic [weapon] turns out to have worn down into or been secretly modified to be a fully automatic weapon.” As we noted in Morissette, the “purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s path to conviction.” We are reluctant to impute that purpose to Congress where, as here, it would mean easing the path to convicting persons whose conduct would not even alert them to the probability of strict regulation….
The potentially harsh penalty attached to violation of § 5861(d)—up to 10 years’ imprisonment—confirms our reading of the Act. Historically, the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea. Certainly, the cases that first defined the concept of the public welfare offense almost uniformly involved statutes that provided for only light penalties such as fines or short jail sentences, not imprisonment in the state penitentiary. …
Our characterization of the public welfare offense … hardly seems apt … for a crime that is a felony, as is violation of § 5861(d). After all, “felony” is, as we noted in distinguishing certain common-law crimes from public welfare offenses, “as bad a word as you can give to man or thing.” Close adherence to the early cases described above might suggest that punishing a violation as a felony is simply incompatible with the theory of the public welfare offense. In this view, absent a clear statement from Congress that mens rea is not required, we should not apply the public welfare offense rationale to interpret any statute defining a felony offense as dispensing with mens rea.
We need not adopt such a definitive rule of construction to decide this case, however. Instead, we note only that where, as here, dispensing with mens rea would require the defendant to have knowledge only of traditionally lawful conduct, a severe penalty is a further factor tending to suggest that Congress did not intend to eliminate a mens rea requirement. In such a case, the usual presumption that a defendant must know the facts that make his conduct illegal should apply.
III
…We emphasize that our holding is a narrow one. As in our prior cases, our reasoning depends upon a commonsense evaluation of the nature of the particular device or substance Congress has subjected to regulation and the expectations that individuals may legitimately have in dealing with the regulated items…. As we noted in Morissette: “Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not.” We attempt no definition here, either. We note only that our holding depends critically on our view that if Congress had intended to make outlaws of gun owners who were wholly ignorant of the offending characteristics of their weapons, and to subject them to lengthy prison terms, it would have spoken more clearly to that effect.
Justice GINSBURG, with whom Justice O’CONNOR joins, concurring in the judgment.
…The question before us is not whether knowledge of possession is required, but what level of knowledge suffices: (1) knowledge simply of possession of the object; (2) knowledge, in addition, that the object is a dangerous weapon; (3) knowledge, beyond dangerousness, of the characteristics that render the object subject to regulation, for example, awareness that the weapon is a machinegun.
…The Nation’s legislators chose to place under a registration requirement only a very limited class of firearms, those they considered especially dangerous…. Only the third reading, then, suits the purpose of the mens rea requirement—to shield people against punishment for apparently innocent activity….
Justice STEVENS, with whom Justice BLACKMUN joins, dissenting.
To avoid a slight possibility of injustice to unsophisticated owners of machineguns and sawed-off shotguns, the Court has substituted its views of sound policy for the judgment Congress made when it enacted the National Firearms Act (or Act). Because the Court’s addition to the text of 26 U.S.C. § 5861(d) is foreclosed by both the statute and our precedent, I respectfully dissent.
The Court is preoccupied with guns that “generally can be owned in perfect innocence.” This case, however, involves a semiautomatic weapon that was readily convertible into a machinegun—a weapon that the jury found to be “a dangerous device of a type as would alert one to the likelihood of regulation.” These are not guns “of some sort” that can be found in almost “50 percent of American homes.” [Only about 15 percent of all the guns in the United States are semiautomatic.] They are particularly dangerous—indeed, a substantial percentage of the unregistered machineguns now in circulation are converted semiautomatic weapons.
The question presented is whether the National Firearms Act imposed on the Government the burden of proving beyond a reasonable doubt not only that the defendant knew he possessed a dangerous device sufficient to alert him to regulation, but also that he knew it had all the characteristics of a “firearm” as defined in the statute….
The National Firearms Act unquestionably is a public welfare statute. United States v. Freed (1971) (holding that this statute “is a regulatory measure in the interest of the public safety”). Congress fashioned a legislative scheme to regulate the commerce and possession of certain types of dangerous devices, including specific kinds of weapons, to protect the health and welfare of the citizenry. To enforce this scheme, Congress created criminal penalties for certain acts and omissions. The text of some of these offenses—including the one at issue here—contains no knowledge requirement.
…[E]ven assuming that the Court is correct that the mere possession of an ordinary rifle or pistol does not entail sufficient danger to alert one to the possibility of regulation, that conclusion does not resolve this case. Petitioner knowingly possessed a semiautomatic weapon that was readily convertible into a machinegun. The “character and nature” of such a weapon is sufficiently hazardous to place the possessor on notice of the possibility of regulation. No significant difference exists between imposing upon the possessor a duty to determine whether such a weapon is registered, Freed, and imposing a duty to determine whether that weapon has been converted into a machinegun. …
The enforcement of public welfare offenses always entails some possibility of injustice. Congress nevertheless has repeatedly decided that an overriding public interest in health or safety may outweigh that risk when a person is dealing with products that are sufficiently dangerous or deleterious to make it reasonable to presume that he either knows, or should know, whether those products conform to special regulatory requirements. The dangerous character of the product is reasonably presumed to provide sufficient notice of the probability of regulation to justify strict enforcement against those who are merely guilty of negligent, rather than willful, misconduct. …
This case presents no dispute about the dangerous character of machineguns and sawed-off shotguns. Anyone in possession of such a weapon is “standing in responsible relation to a public danger.” In the National Firearms Act, Congress determined that the serious threat to health and safety posed by the private ownership of such firearms warranted the imposition of a duty on the owners of dangerous weapons to determine whether their possession is lawful. Semiautomatic weapons that are readily convertible into machineguns are sufficiently dangerous to alert persons who knowingly possess them to the probability of stringent public regulation. The jury’s finding that petitioner knowingly possessed “a dangerous device of a type as would alert one to the likelihood of regulation” adequately supports the conviction.
Accordingly, I would affirm the judgment of the Court of Appeals.
Notes and questions on Staples
1. The Staples Court starts its analysis with a reiteration of a preference for mens rea requirements over strict liability: the Court says that the fact that the statute does not specifically mention a mens rea standard should not be taken to indicate that Congress intended to dispense with a mens rea requirement. But did the government’s interpretation of the statute, or the interpretation used by the trial court, dispense with a mens rea requirement? In other words, did the trial court treat this federal offense as a “strict liability” offense?
2. To answer the previous question, it may help to think in more detail about this one: what counts as a “strict liability” offense? Think about the mens rea question in Staples in relation to the mens rea issues discussed in the drug cases above. Drug possession statutes typically require “knowing possession,” but what specific knowledge is required? As you have seen, courts typically find the mental state aspect of drug possession to be satisfied if the defendant has knowledge of possession of a controlled substance; the defendant need not know which particular controlled substance he or she possesses. Thus drug possession is not technically a strict liability offense, though it is sometimes characterized as such because the requisite knowledge (knowledge of possession of a controlled substance) is usually inferred from the circumstances of possession.
Now consider Mr. Staples. He knew that he had a weapon. On his account, he did not know that the specific type of weapon – he did not know that it was an automatic weapon rather than a semiautomatic weapon. If the federal statute required knowledge that one possesses a weapon, but not knowledge of the specific type of weapon, would it be correct to call it a “strict liability offense”? In many situations, it may be more precise to speak of strict liability elements rather than strict liability offenses. One element of the federal crime is the fact that the gun involved is an automatic weapon. If this element is a strict liability element, then the defendant need not be aware of this fact in order to commit the offense. Even then, the overall offense may still involve some mens rea requirement, such as awareness that one possesses a gun of some type. A broader lesson here is that you should do mens rea analysis with respect to individual elements. For each act or attendant circumstance that is an element of the offense, ask, is there a given mental state that the defendant must hold with regard to this particular element?
3. How does the Supreme Court distinguish United States v. Freed ? What is the critical distinction between guns and grenades, in the Court’s analysis?
4. The Staples majority opinion says that “guns generally can be owned in perfect innocence,” and also that “owning a gun is usually licit and blameless conduct.” Of course, whether one may own a gun (or more narrowly, a “firearm”) innocently or blamelessly is within Congress’s power to decide, if Congress has the power to criminalize gun possession or firearm possession. When Staples was decided in 1994, the prevailing interpretation of the Second Amendment was that it protected a right to bear arms as part of a state militia, but not an individual right to bear arms. Fourteen years after Staples, the Court declared for the first time that the Second Amendment protected an individual right to bear arms. See District of Columba v. Heller, 554 U.S. 570 (2008). Justice Thomas, the author of the majority opinion in Staples, was one member of the five-Justice majority in Heller. To what degree does the analysis in Staples depend on an underlying assumption that gun ownership is constitutionally protected conduct?
5. Harold E. Staples III, the defendant in Staples, appeared often in the local news in Oklahoma – and in the courts. He served as “the key prosecution witness” in a 1989 federal prosecution of a man accused of illegal wiretapping. He gained further local notoriety when he allowed the Ku Klux Klan to hold rallies on the land where he lived, telling a local newspaper that he wouldn’t send his children away for the rally, and stating, “These are absolutely nice people… [T]hey won’t hear anything offensive coming from these people.” Almost twenty years after the Supreme Court issued the decision you’ve just read, Staples was charged again, this time with conspiracy to distribute methamphetamine. He died while those charges were still pending. See David Harper, Newsmaker in Local Courtrooms Dies, Tulsa World, June 12, 2013, page A14.
Check Your Understanding (7-4)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Guns, Drugs, and Mass Incarceration
As noted in the introduction to this chapter, experts have debated the role of drug and gun offenses in producing mass incarceration. Of course, to determine what has caused mass incarceration, we need to know what that term means. Sometimes “mass incarceration” is used to describe the very high incarceration rates that have existed in the United States for several decades now. In other instances, “mass incarceration” or a related term such as “hyper-incarceration” is used to signify the racial impact of more severe sentences. Whether we are thinking of the overall increase in American prisoners or the racial patterns in that increase, penalties for drug and gun offenses seem to be an important part of the explanation. Drug and gun crimes offer an opportunity to reflect on the interaction of criminalization, enforcement, and adjudication decisions, and to add to this picture a closer look at the importance of sentencing decisions.
After criminalization, enforcement, and adjudication decisions have been made – for example, marijuana possession has been defined as criminal, police have identified and arrested a particular person for this offense, and the person has pled guilty – there often remains the question of punishment: how (much) should the defendant be punished? Depending on the jurisdiction, the appropriate sentence could be a question within the discretion of the trial court, or it could be defined by “sentencing guidelines” or by statute. When a statute sets a required sentence and does not leave judges the authority to impose a different sentence, the sentence is said to be “mandatory.” Some of the most severe “mandatory minimum” sentences arise in the context of drug offenses, gun offenses, or the potent combination of drugs and guns. The next case involves a challenge to one of the most significant federal “mandatory minimums.”
18 U.S.C. § 924(c) [as of 1994; later amended]
(1)(A) Whoever, during and in relation to any crime of violence or drug trafficking crime … for which he may be prosecuted in a court of the United States, uses or carries a firearm… shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, [be sentenced to imprisonment for five years]. …
(1)(C) In the case of a second or subsequent conviction under this subsection, the person shall … be sentenced to a term of imprisonment of not less than 25 years…
UNITED STATES of America, Plaintiff
v.
Weldon ANGELOS, Defendant
United States District Court, D. Utah, Central Division
345 F. Supp. 2d 1227
Nov. 16, 2004
CASSELL, District Judge.
Defendant Weldon Angelos stands now before the court for sentencing. He is a twenty-four–year-old first offender who is a successful music executive with two young children. Because he was convicted of dealing marijuana and related offenses, both the government and the defense agree that Mr. Angelos should serve about six to eight years in prison. But there are three additional firearms offenses for which the court must also impose sentence. Two of those offenses occurred when Mr. Angelos carried a handgun to two \$350 marijuana deals; the third when police found several additional handguns at his home when they executed a search warrant. For these three acts of possessing (not using or even displaying) these guns, the government insists that Mr. Angelos should essentially spend the rest of his life in prison. Specifically, the government urges the court to sentence Mr. Angelos to a prison term of no less than 61 ½ years—six years and a half (or more) for drug dealing followed by 55 years for three counts of possessing a firearm in connection with a drug offense. In support of its position, the government relies on a statute—18 U.S.C. § 924(c)—which requires the court to impose a sentence of five years in prison the first time a drug dealer carries a gun and twenty-five years for each subsequent time. Under § 924(c), the three counts produce 55 years of additional punishment for carrying a firearm.
The court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational. Adding 55 years on top of a sentence for drug dealing is far beyond the roughly two-year sentence that the congressionally-created expert agency (the United States Sentencing Commission) believes is appropriate for possessing firearms under the same circumstances. The 55–year sentence substantially exceeds what the jury recommended to the court. It is also far in excess of the sentence imposed for such serious crimes as aircraft hijacking, second degree murder, espionage, kidnapping, aggravated assault, and rape. It exceeds what recidivist criminals will likely serve under the federal “three strikes” provision. At the same time, however, this 55–year additional sentence is decreed by § 924(c).
The court’s role in evaluating § 924(c) is quite limited. The court can set aside the statute only if it is irrational punishment without any conceivable justification or is so excessive as to constitute cruel and unusual punishment in violation of the Eighth Amendment. After careful deliberation, the court reluctantly concludes that it has no choice but to impose the 55-year sentence. While the sentence appears to be cruel, unjust, and irrational, in our system of separated powers Congress makes the final decisions as to appropriate criminal penalties. Under the controlling case law, the court must find either that a statute has no conceivable justification or is so grossly disproportionate to the crime that no reasonable argument can be made its behalf. If the court is to fairly apply these precedents in this case, it must reject Mr. Angelos’ constitutional challenges. Accordingly, the court sentences Mr. Angelos to a prison term of 55 years and one day, the minimum that the law allows.
To correct what appears to be an unjust sentence, the court also calls on the President—in whom our Constitution reposes the power to correct unduly harsh sentences—to commute Mr. Angelos’ sentence to something that is more in accord with just and rational punishment. In particular, the court recommends that the President commute Mr. Angelos’ sentence to no more than 18 years in prison, the average sentence that the jurors in this case recommended. In addition, the court also calls on Congress to modify § 924(c) so that its harsh provisions for 25–year multiple sentences apply only to true recidivist drug offenders—those who have been sent to prison and failed to learn their lesson. Because of the complexity of these conclusions, the court will set out their basis at some length.
I. Factual Background
Weldon Angelos is twenty-four years old. He was born on July 16, 1979, in Salt Lake City, Utah. He was raised in the Salt Lake City area by his father … with only minimal contact with his mother. Mr. Angelos has two young children … six–year-old Anthony and five-year-old Jessie. Before his arrest Mr. Angelos had achieved some success in the music industry. He started Extravagant Records, a label that produces rap and hip hop music. He had worked with prominent hip hop musicians, including Snoop Dogg, on the “beats” to various songs and was preparing to record his own album.
The critical events in this case are three “controlled buys” of marijuana by a government informant from Mr. Angelos. On May 10, 2002, Mr. Angelos met with the informant, Ronnie Lazalde, and arranged a sale of marijuana. On May 21, 2002, Mr. Angelos completed a sale of [eight ounces] of marijuana to Lazalde for \$350. Lazalde observed Mr. Angelos’ Glock pistol by the center console of his car. This drug deal formed the basis for the first § 924(c) count.
During a second controlled buy with Lazalde, on June 4, 2002, Mr. Angelos lifted his pant leg to show him the Glock in an ankle holster. Lazalde again purchased approximately eight ounces of marijuana for \$350. This deal formed the basis for the second § 924(c) count.
A third controlled buy occurred on June 18, 2002, with Mr. Angelos again selling Lazalde eight ounces of marijuana for \$350. There was no direct evidence of a gun at this transaction….
On November 15, 2003, police officers arrested Mr. Angelos at his apartment pursuant to a warrant. Mr. Angelos consented to a search. The search revealed a briefcase which contained \$18,040, a handgun, and two opiate suckers. [Police also found] approximately three pounds of marijuana [and] two other guns in a locked safe…. Searches at other locations, including the apartment of Mr. Angelos’ girlfriend, turned up several duffle bags with marijuana residue, two more guns, and additional cash.
The original indictment issued against Mr. Angelos contained three counts of distribution of marijuana, one § 924(c) count for the firearm at the first controlled buy, and two other lesser charges. Plea negotiations began between the government and Mr. Angelos. On January 20, 2003, the government told Mr. Angelos, through counsel, that if he pled guilty to the drug distribution count and the § 924(c) count, the government would agree to drop all other charges, not supersede the indictment with additional counts, and recommend a prison sentence of 15 years. The government made clear to Mr. Angelos that if he rejected the offer, the government would obtain a new superseding indictment adding several § 924(c) counts that could lead to Mr. Angelos facing more than 100 years of mandatory prison time. In short, Mr. Angelos faced the choice of accepting 15 years in prison or insisting on a trial by jury at the risk of a life sentence. Ultimately, Mr. Angelos rejected the offer and decided to go to trial. The government then obtained two superseding indictments, eventually charging twenty total counts, including five § 924(c) counts which alone carried a potential minimum mandatory sentence of 105 years. The five § 924(c) counts consisted of two counts for the Glock seen at the two controlled buys, one count for three handguns found at his home, and two more counts for the two guns found at the home of Mr. Angelos’ girlfriend.
Perhaps recognizing the gravity of the situation, Mr. Angelos tried to reopen plea negotiations…. The government refused his offer, and the case proceeded to trial. The jury found Mr. Angelos guilty on sixteen counts, including three § 924(c) counts: two counts for the Glock seen at the two controlled buys and a third count for the … handguns at Mr. Angelos’ home. The jury found him not guilty on three counts—including the two additional § 924(c) counts….
Mr. Angelos’ sentence is presumptively governed by the Federal Sentencing Guidelines…. The prescribed Guidelines’ sentence for Mr. Angelos for everything but the § 924(c) counts is 78 to 97 months. After the Guideline sentence is imposed, however, the court must then add the § 924(c) counts. Section 924(c) prescribes a five-year mandatory minimum for a first conviction, and 25 years for each subsequent conviction…. In addition, § 924(c) mandates that these 55 years run consecutively to any other time imposed. As a consequence, the minimum sentence that the court can impose on Mr. Angelos is 61 ½ years—6 ½ years (78 months) for the 13 counts under the Guidelines and 55 consecutive years for the three § 924 convictions. The federal system does not provide the possibility of parole, but instead provides only a modest “good behavior” credit of approximately 15 percent of the sentence. Assuming good behavior, Mr. Angelos’ sentence will be reduced to “only” 55 years, meaning he could be released when he is 78 years old.
Mr. Angelos [argues] that § 924(c) is unconstitutional as applied to him, either because the additional 55–year sentence is irrational punishment that violates equal protection principles or is cruel and unusual punishment that violates the Cruel and Unusual Punishment Clause….
II. Legislative History and Judicial Interpretation of § 924(c )
Before turning to Mr. Angelos’ specific challenges to § 924(c), it is helpful to understand the history of the statute. [The original statute] was proposed and enacted in a single day as an amendment to the Gun Control Act of 1968 enacted following the assassinations of Martin Luther King, Jr. and Robert F. Kennedy. Congress intended the Act to address the “increasing rate of crime and lawlessness and the growing use of firearms in violent crime.” Because § 924(c) was offered as a floor amendment, there are no congressional hearings or committee reports regarding its original purpose….
As originally enacted, § 924(c) gave judges considerable discretion in sentencing and was not nearly as harsh as it has become. … In the 36 years since its passage, the penalties attached to § 924(c) have been made continually harsher either by judicial interpretation or congressional action.… [I]f the original version of § 924(c) governed Mr. Angelos’ sentencing, the court could impose three separate one-year enhancements, adding a total of three years to his sentence. However, after 36 years of judicial interpretation and congressional modifications, the court is now left with a version of § 924(c) that requires a sentence of 55 years on top of a tough Guidelines sentence for drug dealing.
III. Mr. Angelos Equal Protection Challenge to the Statute
Mr. Angelos first contends that 18 U.S.C. § 924(c) makes arbitrary classifications and irrationally treats him far more harshly than criminals guilty of other much more serious crimes. He raises this claim as an equal protection challenge. …Under equal protection principles, the court’s review is quite limited. …[U]nless a law infringes upon a fundamental right or classifies along suspect lines such as race, the court’s review is limited to determining whether there is a rational basis for the law.
… Before turning to the merits … it is important to understand the length of the sentence that the government is asking the court to impose. [Because Angelos is 24 and] [t]he average life expectancy for males in the United States is about 74 years of age[,] … if the court imposes the sentence sought by the government, Mr. Angelos will effectively receive a sentence of life.
… [Section] 924(c) imposes punishment in this case far beyond that called for by the congressionally-created expert agency on sentencing, by the jurors who heard the evidence, by the Utah state system, or by any of the other state systems. If the court is to take seriously the directive that it should impose “just punishment” with its sentences, then it should impose sentences that are viewed as appropriate by the citizens of this state and of this country. The court concludes that placing Mr. Angelos in prison for 61 ½ years is not “just punishment” for his crimes. This factor suggests the irrationality of § 924(c).
… Mr. Angelos [also] contends that his § 924(c) sentence is not only unjust but also irrational when compared to the punishment imposed for other more serious federal crimes. … In evaluating [these claims], the court starts from the premise that Mr. Angelos committed serious crimes. Trafficking in illegal drugs runs the risk of ruining lives through addiction and the violence that the drug trade spawns. As the government properly argued, when a defendant engages in a drug-trafficking operation and “carries and possesses firearms to aid in that venture, as was the case here, the actual threat of violence always exists, even it if does not actually occur.”83 But do any of these general rationales provide a rational basis for punishing the potential violence which § 924(c) is meant to deter more harshly than actual violence that harms a victim in its wake? In other words, is it rational to punish a person who might shoot someone with a gun he carried far more harshly than the person who actually does shoot or harm someone?
As applied in this case, the classifications created by § 924(c) are simply irrational. Section 924(c) imposes on Mr. Angelos a sentence 55 years or 660 months. Added to the minimum 78–month Guidelines sentence for a total sentence of 738 months, Mr. Angelos is facing a prison term which more than doubles the sentence of, for example, an aircraft hijacker (293 months), a terrorist who detonates a bomb in a public place (235 months), a racist who attacks a minority with the intent to kill and inflicts permanent or life-threatening injuries (210 months), a second-degree murderer, or a rapist….
… Amazingly, Mr. Angelos’ sentence under § 924(c) is still far more severe than criminals who committed, for example, three aircraft hijackings, three second-degree murders, three kidnappings, or three rapes…. Mr. Angelos will receive a longer sentence than any three-time criminal, with the sole exception of a marijuana dealer who shoots three people. The irrationality of these differences is manifest and can be objectively proven. In the Eighth Amendment context, the Supreme Court has instructed that “[c]omparisons can be made in light of the harm caused or threatened to the victim or society, and the culpability of the offender.” In contrast to the serious violent felonies listed [above], the crimes committed by Mr. Angelos had the potential for violence, but no actual violence occurred. This is not to say that trafficking in illegal drugs is somehow a non-violent offense. Indeed, in Harmelin, Justice Kennedy quite properly called such an assertion “false to the point of absurdity.” Harmelin involved the potential distribution of approximately 32,500 doses of cocaine, a highly addictive drug that was linked to many of the homicides in Detroit. Justice Kennedy’s concurrence equated the crime in Harmelin with “felony murder without specific intent to kill.”
In this case, however, Mr. Angelos will be completely punished for his marijuana trafficking by the 78–97 month Guidelines sentence he receives… Section 924(c) punishes Angelos more harshly for crimes that threaten potential violence than for crimes that conclude in actual violence to victims (e.g., aircraft hijacking, second-degree murder, racist assaults, kidnapping, and rape). This factor, therefore, also suggests the irrationality of § 924(c).
Mr. Angelos also argues that § 924(c) is irrational in failing to distinguish between the recidivist and the first-time offender. Section 924(c) increases penalties for a “second or subsequent conviction under this subsection.” This language can be interpreted in two different ways. One construction would be that an offender who is convicted of a § 924(c) violation, serves his time, and then commits a subsequent violation is subject to an enhanced penalty. This was the construction that the Tenth Circuit (among other courts) originally gave to the statute.
…. In 1993 in Deal v. United States, the Supreme Court adopted [a more expansive] construction, [allowing] the “second or subsequent” language in § 924(c) to apply … to [a] defendant who is convicted of multiple § 924(c) counts in the same proceeding stemming from a single indictment. The Court concluded (over the dissents of three Justices) that the unambiguous phrase “subsequent conviction” in the statute permitted no distinction between the time at which the convictions took place. In addition, all time imposed for each § 924(c) count must run consecutively to any other sentence. This is what is known as “count stacking.”
When multiple § 924(c) counts are stacked on top of each other, they produce lengthy sentences that fail to distinguish between first offenders (like Mr. Angelos) and recidivist offenders. … Other true recidivist statutes do not operate this way. Instead, they graduate punishment (albeit only roughly) between first offenders and subsequent offenders….
For the reasons outlined in the previous section, § 924(c) imposes unjust punishment and creates irrational classifications between different offenses and different offenders. To some, this may seem like a law professor’s argument—one that may have some validity in the classroom but little salience in the real world. After all, the only issue in this case is the extent of punishment for a man justly convicted of serious drug trafficking offenses. So what, some may say, if he spends more years in prison than might be theoretically justified? It is common wisdom that “if you can’t do the time, don’t do the crime.”
The problem with this simplistic position is that it overlooks other interests that are inevitably involved in the imposition of a criminal sentence. For example, crime victims expect that the penalties the court imposes will fairly reflect the harms that they have suffered. When the sentence for actual violence inflicted on a victim is dwarfed by a sentence for carrying guns to several drug deals, the implicit message to victims is that their pain and suffering counts for less than some abstract “war on drugs.”
… Another reason for concern is that the unjust penalties imposed by § 924(c) can be expected to attract public notice…. Perhaps in the short term, no ill effects will come from the difference between public expectations and actual sentences. But in the longer term, the federal criminal justice system will suffer. Most seriously, jurors may stop voting to convict drug dealers in federal criminal prosecutions if they are aware that unjust punishment may follow. It only takes a single juror who is worried about unjust sentencing to “hang” a jury and prevent a conviction. …
Justifications for § 924(c)
Given these many problems with § 924(c) as applied to this case—its imposition of unjust punishment, its irrational classifications between offenses and offenders, and its demeaning of victims of actual criminal violence—what can be said on behalf of the statute? The Sentencing Commission has catalogued the six rationales that are said to undergird mandatory sentencing schemes….
(1) Assuring “just” (i.e. appropriately severe) punishment, (2) elimination of sentence disparities, (3) judicial economies resulting from increased pressure on defendants to plead guilty, (4) stronger inducements for knowledgeable offenders to cooperate in the investigation of others, (5) more effective deterrence, and (6) more effective incapacitation of the serious offender.
…[In this case, the government has not relied on the first or second rationale identified above.] The government has also not advanced the third rationale—judicial economies resulting from increased pressure on defendants to plead guilty. Here again, it is possible to understand the government’s reluctance. While it is constitutionally permissible for the government to threaten to file enhanced charges against a defendant who fails to plead guilty, there is always the nagging suspicion that the practice is unseemly. In this case, for example, the government initially offered Mr. Angelos a plea bargain in which he would receive a fifteen-year-sentence under one § 924(c) count. When he had the temerity to decline, the government filed superseding indictments adding four additional § 924(c) counts. So far as the court can determine, the superseding indictment rested not on any newly-discovered evidenced but rather solely on the defendant’s unwillingness to plead guilty. …[I]t is understandable that the government would not want to publicly defend § 924(c) with the plea-inducing argument, even though given the realities of overworked prosecutors this may provide a true justification for the statute. Nor has the government argued that § 924(c) is needed to provide incentives for drug traffickers to inform on others in their organization. Instead, the rationale advanced by government is deterrence and incapacitation: the draconian provisions of § 924(c) are necessary to deter drug dealers from committing crimes with those firearms and to prevent Mr. Angelos from doing so in the future.
The deterrence argument rests on a strong intuitive logic. Sending a message to drug dealers that they will serve additional time in prison if they are caught with firearms may lead some to avoid firearms entirely and others to leave their firearms at home…. Generally criminologists believe that an increase in prison populations will reduce crime through both a deterrent and incapacitative effect. The consensus view appears to be that each 10% increase in the prison population produces about a 1% to 3% decrease in serious crimes. … While offenders “substituted” into less harmful property crimes, the overall reduction in crime was significant. While no specific study has examined § 924(c), it is reasonable to assume—and Congress is entitled to assume—that it has prevented some serious drug and firearms offenses.
The problem with the deterrence argument, however, is that it proves too much. A statute that provides mandatory life sentences for jaywalking or petty theft would, no doubt, deter those offenses. But it would be hard to view such hypothetical statutes as resting on rational premises. Moreover, a mandatory life sentence for petty theft, for example, would raise the question of why such penalties were not in place for aircraft hijacking, second-degree murder, rape, and other serious crimes. Finally, deterrence comes at a price. Given that holding a person in federal prison costs about \$23,000 per year, the 61–year–sentence the court is being asked to impose in this case will cost the taxpayers (even assuming Mr. Angelos receives good time credit and serves “only” 55–years) about \$1,265,000. Spending more than a million dollars to incarcerate Mr. Angelos will prevent future crimes by him and may well deter some others from being involved with drugs and guns. But that money could also be spent on other law enforcement or social programs that in all likelihood would produce greater reductions in crime and victimization.
If the court were to evaluate these competing tradeoffs, it would conclude that stacking § 924(c) counts on top of each other for first-time drug offenders who have merely possessed firearms is not a cost-effective way of obtaining deterrence. It is not enough to simply be “tough” on crime. Given limited resources in our society, we also have to be “smart” in the way we allocate our resources. But these tradeoffs are the subject of reasonable debate. It is not the proper business of the court to second-guess the congressional judgment that § 924(c) is a wise investment of resources. Instead, in conducting rational basis review of the statute, the court is only to determine whether “any ground can be conceived to justify [the statutory scheme] as rationally related to a legitimate government interest.” “Where there are ‘plausible reasons’ for Congress’ action, [the court’s] inquiry is at an end.” …
Accordingly, the court reluctantly concludes that § 924(c) survives rational basis scrutiny. While it imposes unjust punishment and creates irrational classifications, there is a “plausible reason” for Congress’ action. As a result, this court’s obligation is to follow the law and to reject Mr. Angelos’ equal protection challenge to the statute.
IV. Cruel and Unusual Punishment
In addition to raising an equal protection argument, Mr. Angelos also argues that his 55–year sentence under § 924(c) violates the Eighth Amendment’s prohibition of cruel and unusual punishment. In this argument, he is joined in an amicus brief filed by a distinguished group of 29 former United States District Judges, United States Circuit Court Judges, and United States Attorneys, who draw on their expertise in federal criminal law and federal sentencing issues to urge that the sentence is unconstitutional as disproportionate to the offenses at hand.
Mr. Angelos and his supporting amici are correct in urging that controlling Eighth Amendment case law places an outer limit on punishments that can be imposed for criminal offenses, forbidding penalties that are grossly disproportionate to any offense. … [In] the … fractured 1991 decision in Harmelin v. Michigan, … the Court held that imposition of a life sentence without possibility of parole for possession of 650 grams of cocaine did not violate the Eighth Amendment. Then, last year, the Supreme Court confirmed that the gross disproportionality principle—“the precise contours of which are unclear”—is applicable to sentences for terms of years; that there was a “lack of clarity” in its precedents; that it had “not established a clear or consistent path for courts to follow;” and that the proportionality principles from Justice Kennedy’s Harmelin concurrence “guide our application of the Eighth Amendment.” …
In light of these controlling holdings, the court must engage in a proportionality analysis guided by factors outlined in Justice Kennedy’s Harmelin concurrence. In particular, the court must examine (1) the nature of the crime and its relation to the punishment imposed, (2) the punishment for other offenses in this jurisdiction, and (3) the punishment for similar offenses in other jurisdictions.
Before turning to these Harmelin factors, it is important to emphasize that the criminal conduct at issue is solely that covered by the three § 924(c) counts. Mr. Angelos will be fully and appropriately punished for all other criminal conduct from the sentence on these other counts. Thus, the proportionality question … boils down to whether the 55–year sentence is disproportionate to the offense of carrying or possessing firearms three times in connection with dealing marijuana.
A. Mr. Angelos Offenses and the Contemplated Penalty
The first Harmelin factor requires the court to compare the seriousness of the three § 924(c) offenses to the harshness of the contemplated penalty to determine if the penalty would be grossly disproportionate to such offenses. In weighing the gravity of the offenses, the court should consider the offenses of conviction and the defendant’s criminal history, as well as “the harm caused or threatened to the victim or society, and the culpability of the offender.” Simply put, “[d]isproportionality analysis measures the relationship between the nature and number of offenses committed and the severity of the punishment inflicted upon the offender.”
The criminal history in this case is easy to describe. Mr. Angelos has no prior adult criminal convictions and is treated as a first-time offender under the Sentencing Guidelines.
The sentence-triggering criminal conduct in this case is also modest. Here, on two occasions while selling small amounts of marijuana, Mr. Angelos possessed a handgun under his clothing, but he never brandished or used the handgun. … Mr. Angelos did not engage in force or violence, or threats of force or violence, in furtherance of or in connection with the offenses for which he has been convicted. No offense involved injury to any person or the threat of injury to any person. It is well-established that crimes marked by violence or threat of violence are more serious and that the absence of direct violence affects the strength of society’s interest in punishing a particular criminal.
… Comparing a recommended sentence of two years to the 55–year enhancement the court must impose strongly suggests not merely disproportionality, but gross disproportionality.
B. Comparison to Penalties for Other Offenses
The next Harmelin factor requires comparing Mr. Angelos’ sentence with the sentences imposed on other criminals in the federal system. Generally, “[i]f more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive.” This factor points strongly in favor of finding that the sentence in this case is excessive. As shown … earlier in this opinion, Mr. Angelos will receive a far longer sentence than those imposed in the federal system for such major crimes as aircraft hijacking, second-degree murder, racial beating inflicting life-threatening injuries, kidnapping, and rape. Indeed, Mr. Angelos will receive a far longer sentence than those imposed for three aircraft hijackings, three second-degree murders, three racial beatings inflicting life-threatening injuries, three kidnappings, and three rapes….
C. Comparison to Other Jurisdictions
The final Harmelin factor requires the court to examine “sentences imposed for the same crime in other jurisdictions.” Evaluating this factor is also straightforward. Mr. Angelos sentence is longer than he would receive in any of the fifty states. The government commendably concedes this point in its brief, pointing out that in Washington State Mr. Angelos would serve about nine years and in Utah would serve about five to seven years. Accordingly, the court finds that the third factor is satisfied.
D. Application of the Harmelin Factors in Light of Davis
Having analyzed the three Harmelin factors, the court believes that they lead to the conclusion that Mr. Angelos’ sentence violates the Eighth Amendment. But before the court declares the sentence unconstitutional, there is one last obstacle to overcome. The court is keenly aware of its obligation to follow precedent from superior courts—specifically the Tenth Circuit and, of course, the Supreme Court. The Supreme Court has considered one case that might be regarded as quite similar to this one. In Hutto v. Davis (1982), the Supreme Court held that two consecutive twenty-year sentences—totaling forty years—for possession of nine ounces of marijuana said to be worth \$200 did not violate the Eighth Amendment. If Davis remains good law, it is hard see how the sentence in this case violates the Eighth Amendment. Here, Mr. Angelos was involved in at least two marijuana deals involving \$700 and approximately sixteen ounces (one pound) of marijuana. Perhaps currency inflation could equate \$700 today with \$200 in the 1980’s. But as a simple matter of arithmetic, if 40 years in prison for possessing nine ounces marijuana does not violate the Eighth Amendment, it is hard to see how 61 years for distributing sixteen ounces (or more) would do so.
… [T]he Court apparently continues to view Davis as part of the fabric of the law. … In light of these continued references to Davis, the court believes it is it obligated to follow its holding here. …. Under Davis, Mr. Angelos’ sentence is not cruel and unusual punishment. Therefore, his Eighth Amendment challenge must be rejected.
V. Calculating the Sentence
With Mr. Angelos’ constitutional challenges to the 55–year sentence on § 924(c) counts resolved, the remaining issue before the court is the sentence to be imposed on the other counts…. If the sentence on these thirteen counts was the only sentence that Mr. Angelos would serve, a sentence of about 78–97 months might well be appropriate. But the court cannot ignore the reality that Mr. Angelos will also be sentenced to 55 years on the § 924(c) counts, far in excess of what is just punishment for all of his crimes. In light of this 55–year sentence, and having considered all of the relevant factors listed in the Sentencing Reform Act, the court will impose a sentence of one day in prison for all offenses other than the § 924(c) counts. Lest anyone think that this is a “soft” sentence, in combination with the § 924(c) counts, the result is that Mr. Angelos will not walk outside of prison until after he reaches the age of 70….
VI. Recommendations to Other Branches of Government
Having disposed of the legal arguments in this case, it seems appropriate to make some concluding, personal observations. I have been on the bench for nearly two-and-half years now. During that time, I have sentenced several hundred offenders under the Sentencing Guidelines and federal mandatory minimum statutes. By and large, the sentences I have been required to impose have been tough but fair. In a few cases, to be sure, I have felt that either the Guidelines or the mandatory minimums produced excessive punishment. But even in those cases, the sentences seemed to be within the realm of reason.
This case is different. It involves a first offender who will receive a life sentence for crimes far less serious than those committed by many other offenders—including violent offenders and even a murderer—who have been before me. For the reasons explained in my opinion, I am legally obligated to impose this sentence. But I feel ethically obligated to bring this injustice to the attention of those who are in a position to do something about it.
CONCLUSION
The 55–year sentence mandated by § 924(c) in this case appears to be unjust, cruel, and irrational. But our constitutional system of government requires the court to follow the law, not its own personal views about what the law ought to be. Perhaps the court has overlooked some legal point, and that the appellate courts will find Mr. Angelos’ sentence invalid. But applying the law as the court understands it, the court sentences Mr. Angelos to serve a term of imprisonment of 55 years and one day. The court recommends that the President commute this unjust sentence and that the Congress modify the laws that produced it. The Clerk’s Office is directed to forward a copy of this opinion with its commutation recommendation to the Office of Pardon Attorney and to the Chair and Ranking Member of the House and Senate Judiciary Committees.
Notes and questions on Angelos
1. Judge Paul Cassell, the author of the opinion you’ve just read, argued that a 55-year sentence for this offender was unjust, cruel, and irrational. But Judge Cassell imposed that sentence anyway. Why? A simple answer might be, the judge believed that the law required him to impose the sentence. If so, which law? Consider the different laws involved in this case. There is a federal statute, 18 U.S.C. § 924(c). There is also the federal constitution, which prohibits states from denying “equal protection” of law, and also prohibits “cruel and unusual punishments.” Why doesn’t the federal constitution prohibit the mandatory minimum sentence in this case, according to Judge Cassell?
2. This case gives you a chance to think about the roles of different official decisionmakers in expanding America’s prison population. If Weldon Angelos were to spend his life in prison for a marijuana offense, which institutions or officials bear responsibility for that decision?
3. Note the many contrasts that the court draws between “actual violence” and the offense for which Weldon Angelos is punished. For example, Judge Cassell writes, “When the sentence for actual violence inflicted on a victim is dwarfed by a sentence for carrying guns to several drug deals, the implicit message to victims is that their pain and suffering counts for less than some abstract ‘war on drugs.’” Just a few years after this decision, Judge Cassell resigned from the bench and returned to law school teaching. He said that he wanted to engage in more advocacy than a judicial post allowed, and that the Angelos case was one factor in his decision. However, Cassell’s post-bench advocacy has focused primarily on victims’ rights, including the ability of victims to advocate for longer sentences. But notice also that some argue for severe penalties for gun crimes, or drug crimes, or drugs + gun crimes, precisely because they associate drugs and guns with violence. (Judge Cassell also concedes, “This is not to say that trafficking in illegal drugs is somehow a non-violent offense.”) This case invites us to think about what counts as “violence,” and the way that ideas about violence have shaped official decisions about what and who to punish, and how much punishment to impose.
4. As it turned out, Weldon Angelos did not spend the rest of his life in prison. His case drew attention even at the trial stage; Judge Cassell’s opinion notes that 29 former federal prosecutors and judges filed a brief arguing that the mandatory sentence was unconstitutional. Celebrities (including Snoop Dogg) and others continued to advocate on behalf of Angelos even after he entered prison. After Angelos had served about 12 years, President Obama commuted his sentence, and Angelos was released in 2016. A commutation can shorten a sentence, but it does not reverse the underlying conviction. In December 2020, President Trump pardoned Angelos, suggesting that the injustice of his conviction and sentence are a rare point of bipartisan agreement in highly polarized times. Since his release, Angelos has worked as an advocate for clemency and criminal law reform. So many defendants, including defendants of color, have been imprisoned for long terms under § 924(c) that it is worth asking what made Angelos a distinctively sympathetic prisoner. Was it the lack of prior convictions? The image of Angelos as a family man, a devoted father of young children? Snoop Dogg?
5. Weldon Angelos was eventually released, and Congress did eventually amend § 924(c). The statute still imposes lengthy mandatory minimums, but as of June 2022, the 25-year penalty for a “second or subsequent” violation applies only to a defendant whose first § 924(c) conviction became final before the subsequent violation took place. In other words, the amended law would not allow the “count stacking” that was used against Angelos, but it does enable prosecutors to threaten very severe sentences against anyone with a prior § 924(c) conviction. The new statutory text is reproduced below.
18 U.S.C. § 924 (as amended by First Step Act, effective June 25, 2022)
(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime … for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime–
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
(C) In the case of a violation of this subsection that occurs after a prior conviction under this subsection has become final, the person shall–
(i) be sentenced to a term of imprisonment of not less than 25 years; and
(ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life.
1. [Fn. 1 by the Court:] As used here, the terms “automatic” and “fully automatic” refer to a weapon that fires repeatedly with a single pull of the trigger. That is, once its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted. Such weapons are “machineguns” within the meaning of the Act. We use the term “semiautomatic” to designate a weapon that fires only one shot with each pull of the trigger, and which requires no manual manipulation by the operator to place another round in the chamber after each round is fired. | textbooks/biz/Criminal_Law/Criminal_Law%3A_An_Integrated_Approach_(Ristroph)/1.07%3A_Dangerous_Objects_and_Substances.txt |
Introduction
The previous three chapters have focused on different types of crime, but they share the same basic model of criminal liability: a statute defines conduct as criminal, and liability requires proof of (or the defendant’s admission to) all elements of the crime. This chapter and the next examine an array of doctrines that expand criminal liability to reach persons who plan, begin, encourage, or assist criminal activity without necessarily completing all elements of the target crime. These doctrines of expansion can be roughly divided into two categories, but there is some overlap between the two. First, the term inchoate offenses is often applied to crimes of beginning-but-not-finishing: persons who begin conduct designed to complete a crime, but then fail to complete all elements of the target crime, might be liable for an inchoate offense such as attempt [to commit x offense] or solicitation [to commit x offense]. For example, if I plan a bank robbery and drive to the bank with masks and guns, but then I am prevented from entering the building by savvy security guards, I may be liable for attempted bank robbery. Second, doctrines of group criminality, such as accomplice liability, allow persons to be convicted and punished based in part on the actions of other persons. If I provide support and encouragement to someone who commits bank robbery, accomplice liability could allow me to be convicted of the crime of bank robbery, even if I never set foot in a bank or took any money.
Again, there is some overlap between doctrines of inchoate offenses and doctrines of group criminality, and neither category is crisply defined. The term “conspiracy” can be especially confusing, since it is used to describe both an inchoate offense (e.g., conspiracy to distribute narcotics) and a doctrine of group criminality that allows one member of a conspiracy to be punished for offenses committed by another member of the conspiracy. This chapter focuses on the inchoate offenses of attempt and solicitation. Conspiracy in both senses just described will be addressed along with accomplice liability in the following chapter.
Like several of the offenses we have already studied, such as assault, murder, or burglary, the concept of a criminal attempt originated in common law courts but is today usually defined by statute. We will see two different kinds of attempt statutes in this chapter. Some attempt statutes refer to a specific type of criminal conduct. For example, the first case in this chapter concerns a prosecution under a statute that makes it a crime to attempt to commit a federal drug offense. But most American jurisdictions also have a general attempt statute that does not refer to any specific offense or category of offenses. A general attempt statute makes it a crime to attempt to commit any act designated as criminal elsewhere in the law. If a defendant is prosecuted under a general attempt statute, the prosecution will also need to identify which other offense—sometimes called “the target offense”—the defendant was attempting to commit. After the first case of this chapter, all the other cases involve prosecutions under general attempt statutes (in conjunction with the statutes that define the relevant target offense).
Attempt doctrine is thus usually “trans-substantive,” in that the general definition of an attempt can be paired with any type of criminal conduct. This chapter and the next do include several more cases on drug crimes, however, since inchoate offenses (and group criminality) are widely used in that context. But it is important to remember that a general attempt statute can be paired with almost any kind of offense. This chapter also includes one case involving attempted murder charges and one involving attempted distribution of pornography.
We have seen often the claim that a criminal conviction requires proof of all elements of an offense. Do inchoate offenses subvert that principle by allowing conviction for defendants who satisfy some but not all elements of the underlying offense? One recurring concern about inchoate crimes is the worry that this category of offenses are more or less “thought crimes”—the defendant is punished for intending to engage in some criminal act, even though he did not in fact engage in the specified conduct. In an effort to avoid punishing people for thoughts alone (and assuming we can discern and “prove” those thoughts), courts have struggled at length to define the kind of conduct that is sufficient to prove an attempt. How a jurisdiction defines a criminal attempt can depend upon why it is choosing to define attempts as criminal; this chapter will explore some possible rationales for punishing attempts and other inchoate offenses. As you consider those questions, it is also important to consider ways in which expansions of criminal liability increase the discretion of state officials. With discretion comes the possibility of discrimination. The role of inchoate offenses in producing racial disparities in convictions and imprisonment is an important but neglected topic for which there is relatively little empirical data available. But in this chapter and the next, look for ways in which efforts to expand criminal liability and enforcement authority have created opportunities for racialized enforcement.
This chapter should give you a basic understanding of the concept of a criminal attempt, both as that term was defined at common law and as it is now typically defined in contemporary statutes. The chapter also explores the separate inchoate offense of solicitation, which is basically the crime of asking someone else to commit a crime. You should also learn two principles that are invoked occasionally as limitations on attempt liability – impossibility and renunciation. Finally, attempt doctrine will give you a chance to revisit the interactions among criminalization choices, enforcement choices, and adjudication choices. The last section of this chapter offers a case study to help you apply attempt doctrine and review earlier material. This concluding section also offers a chance to explore further the questions raised in the previous paragraph: how are inchoate offenses and related expansions of criminal law connected to patterns of racial disparity in the American criminal legal system?
A. Preparation, Solicitation, Attempt
21 U.S.C. § 846. Attempt and conspiracy.
Any person who attempts or conspires to commit any offense defined in this subchapter [drug offenses] shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
UNITED STATES of America, Plaintiff-Appellee
v.
Roy MANDUJANO, Defendant-Appellant
United States Court of Appeals, Fifth Circuit
499 F.2d 370
Aug. 19, 1974
RIVES, Circuit Judge:
Mandujano appeals from the judgment of conviction and fifteen-year sentence imposed by the district court, based upon the jury’s verdict finding him guilty of attempted distribution of heroin in violation of 21 U.S.C. § 846. We affirm.
I.
The government’s case rested almost entirely upon the testimony of Alfonso H. Cavalier, Jr., a San Antonio police officer assigned to the Office of Drug Abuse Law Enforcement. Agent Cavalier testified that, at the time the case arose, he was working in an undercover capacity and represented himself as a narcotics trafficker. At about 1:30 P.M. on the afternoon of March 29, 1973, pursuant to information Cavalier had received, he and a government informer went to the Tally-Ho Lounge, a bar located … in San Antonio. Once inside the bar, the informant introduced Cavalier to Roy Mandujano. …Mandujano asked the informant if he was looking for ‘stuff.’ Cavalier said, ‘Yes.’ Mandujano then questioned Cavalier about his involvement in narcotics. Cavalier answered Mandujano’s questions, and told Mandujano he was looking for an ounce sample of heroin to determine the quality of the material. Mandujano replied that he had good brown Mexican heroin for \$650.00 an ounce, but that if Cavalier wanted any of it he would have to wait until later in the afternoon when the regular man made his deliveries. Cavalier said that he was from out of town and did not want to wait that long. Mandujano offered to locate another source, and made four telephone calls in an apparent effort to do so. The phone calls appeared to be unsuccessful, for Mandujano told Cavalier he wasn’t having any luck contacting anybody. Cavalier stated that he could not wait any longer. Then Mandujano said he had a good contact, a man who kept narcotics around his home, but that if he went to see this man, he would need the money ‘out front.’ To reassure Cavalier that he would not simply abscond with the money, Mandujano stated, ‘You are in my place of business. My wife is here. You can sit with my wife. I am not going to jeopardize her or my business for \$650.00.’ Cavalier counted out \$650.00 to Mandujano, and Mandujano left the premises of the Tally-Ho Lounge at about 3:30 P.M. About an hour later, he returned and explained that he had been unable to locate his contact. He gave back the \$650.00 and told Cavalier he could still wait until the regular man came around. Cavalier [left], but arranged to call back at 6:00 P.M. When Cavalier called at 6:00 and again at 6:30, he was told that Mandujano was not available. Cavalier testified that he did not later attempt to contact Mandujano, because, ‘Based on the information that I had received, it would be unsafe for either my informant or myself to return to this area.’
II.
Section 846 of Title 21, entitled ‘Attempt and conspiracy,’ provides that,
“Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”
The theory of the government in this case is straightforward: Mandujano’s acts constituted an attempt to distribute heroin; actual distribution of heroin would violate 21 U.S.C. § 841(a)(1); therefore, Mandujano’s attempt to distribute heroin comes within the terms of § 846 as an attempt to commit an offense defined in the subchapter.
Footnote by the court: [Section 841(a)(1) provides:] ‘(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally-
‘(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.’
Under subsection 802(11) the term ‘distribute’ means ‘to deliver (other than by administering or dispensing) a controlled substance.’ Subsection 802(8) defines the terms ‘deliver’ or ‘delivery’ to mean ‘the actual, constructive or attempted transfer of a controlled substance, whether or not there exists an agency relationship.’
Mandujano urges that his conduct as described by agent Cavalier did not rise to the level of an attempt to distribute heroin…. He claims that at most he was attempting to acquire a controlled substance, not to distribute it; that it is impossible for a person to attempt to distribute heroin which he does not possess or control; that his acts were only preparation, as distinguished from an attempt; and that the evidence was insufficient to support the jury’s verdict. [There was a stipulation that no heroin had exchanged hands in this case.]
Apparently there is no legislative history indicating exactly what Congress meant when it used the word ‘attempt’ in § 846. There are two reported federal cases which discuss the question of what constitutes an attempt under this section. In United States v. Noreikis (7th Cir. 1973) … the court commented that,
‘While it seems to be well settled that mere preparation is not sufficient to constitute an attempt to commit a crime, it seems equally clear that the semantical distinction between preparation and attempt is one incapable of being formulated in a hard and fast rule. The procuring of the instrument of the crime might be preparation in one factual situation and not in another. The matter is sometimes equated with the commission of an overt act, the ‘doing something directly moving toward, and bringing him nearer, the crime he intends to commit.’
In United States v. Heng Awkak Roman (S.D.N.Y. 1973), where the defendants’ actions would have constituted possession of heroin with intent to distribute in violation of § 841 if federal agents had not substituted soap powder for the heroin involved in the case, the court held that the defendants’ acts were an attempt to possess with intent to distribute. The district court in its opinion acknowledged that … “there is no comprehensive statutory definition of attempt in federal law.” The court concluded, however, that it was not necessary in the circumstances of the case to deal with the “complex question of when conduct crosses the line between ‘mere preparation’ and ‘attempt.’”
The courts in many jurisdictions have tried to elaborate on the distinction between mere preparation and attempt….[1] In cases involving statutes other than § 846, the federal courts have confronted this issue on a number of occasions.
… United States v. De Bolt (S.D. Ohio 1918) involved an apparent attempt to sabotage the manufacture of war materials in violation of federal law. With regard to the elements of an attempt, the court in this case quoted Bishop’s New Crim. Law (1892) vol. 1, §§ 728, 729: “An attempt is an intent to do a particular criminal thing, with an act toward it falling short of the thing intended. Hence, the two elements of an evil intent and a simultaneous resulting act constitute, and yet only in combination, an indictable offense, the same as in any other crime.”
Gregg v. United States (8th Cir. 1940) involved in part a conviction for an attempt to import intoxicating liquor into Kansas. The court [noted] with apparent approval the definition of attempt urged by [the defendant]: “[A]n attempt is an endeavor to do an act carried beyond mere preparation, but falling short of execution, and that it must be a step in the direct movement towards the commission of the crime after preparations have been made. The act must ‘carry the project forward within dangerous proximity to the criminal end to be attained.’” The court held, however, that Gregg’s conduct went beyond ‘mere preparation’: “The transportation of goods into a state is essentially a continuing act not confined in its scope to the single instant of passage across a territorial boundary. In our view the appellant advanced beyond the stage of mere preparation when he loaded the liquor into his car and began his journey toward Kansas. From that moment he was engaged in an attempt to transport liquor into Kansas within the clear intent of the statute.”
…[In] United States v. Coplon (2nd Cir. 1950), where the defendant was arrested before passing to a citizen of a foreign nation classified government documents contained in [her] purse, Judge Learned Hand surveyed the law and addressed the issue of what would constitute an attempt:
“Because the arrest in this way interrupted the consummation of the crime one point upon the appeal is that her conduct still remained in the zone of ‘preparation,’ and that the evidence did not prove an ‘attempt.’ This argument it will be most convenient to answer at the outset. A neat doctrine by which to test when a person, intending to commit a crime which he fails to carry out, has ‘attempted’ to commit it, would be that he has done all that it is within his power to do, but has been prevented by intervention from outside; in short, that he has passed beyond any locus poenitentiae. Apparently that was the original notion, and may still be law in England; but it is certainly not now generally the law in the United States, for there are many decisions which hold that the accused has passed beyond ‘preparation,’ although he has been interrupted before he has taken the last of his intended steps. The decisions are too numerous to cite, and would not help much anyway, for there is, and obviously can be, no definite line; … There can be no doubt in the case at bar that ‘preparation’ had become ‘attempt.’ The jury were free to find that the packet was to be delivered that night, as soon as they both thought it safe to do so. To divide ‘attempt’ from ‘preparation’ by the very instant of consummation would be to revert to the old doctrine.”
… Although the foregoing cases give somewhat varying verbal formulations, careful examination reveals fundamental agreement about what conduct will constitute a criminal attempt. First, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting. United States v. Quincy, 31 U.S. 445 (1832) (“The offenses consists principally in the intention with which the preparations were made…”)….
Second, the defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent. … The use of the word ‘conduct’ indicates that omission or possession, as well as positive acts, may in certain cases provide a basis for liability. The phrase ‘substantial step,’ rather than ‘overt act,’ is suggested by Gregg v. United States, supra (‘a step in the direct movement toward the commission of the crime’); United States v. Coplon, supra (‘before he has taken the last of his intended steps’) and [other cases] and indicates that the conduct must be more than remote preparation. The requirement that the conduct be strongly corroborative of the firmness of the defendant’s criminal intent also relates to the requirement that the conduct be more than ‘mere preparation,’ and is suggested by the Supreme Court’s emphasis upon ascertaining the intent of the defendant, United States v. Quincy, supra, and by the approach taken in United States v. Coplon, supra (‘. . . some preparation may amount to an attempt. It is a question of degree’).[2]
III.
The district court charged the jury in relevant part as follows:
[T]he essential elements required in order to prove or to establish the offense charged in the indictment, which is, again, that the defendant knowingly and intentionally attempted to distribute a controlled substance, must first be a specific intent to commit the crime, and next that the accused wilfully made the attempt, and that a direct but ineffectual overt act was done toward its commission, and that such overt act was knowingly and intentionally done in furtherance of the attempt.
‘* * * In determining whether or not such an act was done, it is necessary to distinguish between mere preparation on the one hand and the actual commencement of the doing of the criminal deed on the other. Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging a means for its commission, is not sufficient to constitute an attempt, but the acts of a person who intends to commit a crime will constitute an attempt where they, themselves, clearly indicate a certain unambiguous intent to wilfully commit that specific crime and in themselves are an immediate step in the present execution of the criminal design, the progress of which would be completed unless interrupted by some circumstances not intended in the original design.
(Tr. Jury Trial Proc., pp. 138-139.) These instructions, to which the defendant did not object, are compatible with our view of what constitutes an attempt under § 846.
After the jury brought in a verdict of guilty, the trial court propounded a series of four questions to the jury:
‘(1) Do you find beyond a reasonable doubt that on the 29th day of March, 1973, Roy Mandujano, the defendant herein, knowingly, wilfully and intentionally placed several telephone calls in order to obtain a source of heroin in accordance with his negotiations with Officer Cavalier which were to result in the distribution of approximately one ounce of heroin from the defendant Roy Mandujano to Officer Cavalier?’
‘(2) Do you find beyond a reasonable doubt that the telephone calls inquired about in question no. (1) constituted overt acts in furtherance of the offense alleged in the indictment?’
‘(3) Do you find beyond a reasonable doubt that on the 29th day of March, 1973, Roy Mandujano, the defendant herein, knowingly, wilfully and intentionally requested and received prior payment in the amount of \$650.00 for approximately one ounce of heroin that was to be distributed by the defendant Roy Mandujano to Officer Cavalier?’
‘(4) Do you find beyond a reasonable doubt that the request and receipt of a prior payment inquired about in question no. (3) constituted an overt act in furtherance of the offense alleged in the indictment?’
Neither the government nor the defendant objected to this novel procedure. After deliberating, the jury answered ‘No’ to question (1) and ‘Yes’ to questions (3) and (4). The jury’s answers indicate that its thinking was consistent with the charge of the trial court.
The evidence was sufficient to support a verdict of guilty… [T]he jury could have found that Mandujano was acting knowingly and intentionally and that he engaged in conduct—the request for and the receipt of the \$650.00—which in fact constituted a substantial step toward distribution of heroin. From interrogatory (4), it is clear that the jury considered Mandujano’s request and receipt of the prior payment a substantial step toward the commission of the offense. Certainly, in the circumstances of this case, the jury could have found the transfer of money strongly corroborative of the firmness of Mandujano’s intent to complete the crime. Of course, proof that Mandujano’s ‘good contact’ actually existed, and had heroin for sale, would have further strengthened the government’s case; however, such proof was not essential.
Check Your Understanding (8-1)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Notes and questions on Mandujano
1. What was Roy Mandujano’s sentence for the crime of attempted distribution of heroin? Look at the first sentence of the court’s opinion, and then at the penalty provisions of 21 U.S.C. § 846, the federal attempt statute. Though an attempted offense may seem “lesser” than a completed offense, many attempt statutes provide that an attempt can be punished with the same range of penalties available for the underlying offense. (See also note 1 after People v. Acosta later in this chapter.)
2. Look again at 21 U.S.C. § 846, the federal attempt statute. It’s short! Notice that it uses the terms attempt and conspiracy, but does not define either term. This state was first enacted as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. The first two federal opinions to interpret section 846, both quoted in Mandujano, both noted that there was no precise definition of the term attempt in the statute, but each of these opinions also declined to provide a precise definition. Why might a court think that it is not necessary or desirable to define attempt, given the many different possible definitions listed in footnote 5?
3. As the Mandujano court explains, at common law courts often emphasized that there was a difference between “mere preparation” to commit a crime, on one hand, and a legally punishable attempt, on the other hand. But judges struggled to explain what the difference was, and it’s not clear that there ever was a single common law definition of attempt. Instead, common law courts developed several different tests, the most important of which are listed in footnote 5 of the court’s opinion. Note that each definition refers to “the crime” or “the completed crime.” An attempt conviction is always based upon some other offense that is defined as criminal. That is, a defendant is not convicted of “attempt” in the abstract, but attempted murder, attempted theft, attempted distribution of heroin, and so on. Note also that the common law tests in footnote 5, and the discussions of attempt in earlier federal cases, define a general doctrine of attempt that is applicable to any offense. One recurring question is whether attempt can be meaningfully defined in this “transsubstantive” way—in other words, is the definition of attempt the same whether the target crime is murder or littering? Should it be the same? Or is the struggle to define attempt caused by the fact that courts want to define it differently depending on the underlying offense?
4. Are there key differences between the various tests listed in footnote 5 of the Fifth Circuit opinion, or do these tests all amount to pretty much the same thing, as the court suggests? Would Roy Mandujano be guilty of attempted distribution of heroin under each common law definition of attempt?
5. Ultimately, the Fifth Circuit adopts an understanding of attempt that follows the language of the Model Penal Code: the defendant must act “with the kind of culpability otherwise required for the commission of the crime,” and must also engage in conduct that constitutes a “substantial step” toward commission of the crime. Look closely at MPC § 5.01, quoted in footnote 6 of the court’s opinion and reprinted below. Notice that the “substantial step” is actually just one of three ways to commit an attempt. What are the other two?
6. The Fifth Circuit did not quote the full text of MPC § 5.01, which offers several specific examples of the kind of conduct that can constitute a “substantial step.” The full text of MPC § 5.01 is reprinted below; it may be useful as we encounter other nuances of attempt law later in this chapter.
Model Penal Code § 5.01
(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or
(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or
(c) purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
(2) Conduct That May Be Held Substantial Step Under Subsection (1)(c). Conduct shall not be held to constitute a substantial step under Subsection (1)(c) of this Section unless it is strongly corroborative of the actor’s criminal purpose. Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law:
(a) lying in wait, searching for or following the contemplated victim of the crime;
(b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;
(c) reconnoitering the place contemplated for the commission of the crime;
(d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;
(e) possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances;
(f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, if such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;
(g) soliciting an innocent agent to engage in conduct constituting an element of the crime.
(3) Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to aid another to commit a crime that would establish his complicity under Section 2.06 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.
(4) Renunciation of Criminal Purpose. When the actor’s conduct would otherwise constitute an attempt under Subsection (1)(b) or (1)(c) of this Section, it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention.
Within the meaning of this Article, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.
7. MPC § 5.01(1)(a) describes what are sometimes called “completed attempts,” or situations in which the defendant has the mental state required by the underlying crime and engages in all the conduct elements, but cannot be punished for the underlying crime itself because some attendant circumstance element cannot be established. For example, consider the facts of Heng Awkak Ranan, discussed in the Mandujano opinion.
8. MPC § 5.01(1)(b) is similar to another common law explanation of attempt, the “last act” test. Under this test, a defendant was guilty of attempt if he had completed the “last act” or “last proximate act” necessary to accomplish the targeted crime. Most courts held that evidence of the last proximate act was sufficient but not necessary to prove attempt.
9. What mental state must be “proven” (or admitted) in order to establish liability for attempt? The jury instructions used in Mandujano, quoted in the Fifth Circuit’s opinion, state that “a specific intent to commit the crime” is an element of attempt. This claim is somewhat at odds with the court’s reliance on the Model Penal Code, which avoided the common law terms “specific intent” and “general intent.” Those terms are notoriously ambiguous, as discussed in prior chapters. The claim that attempt requires specific intent is usually a claim that the defendant must have the purpose of accomplishing the underlying offense. Does the Model Penal Code require this particular mental state, or does it allow attempt liability even when the defendant does not think, “I want to commit x crime”? Look again at MPC § 5.01(1), above.
10. These notes focus heavily on the Model Penal Code’s definition of attempt because Section 5.01 is one of the more influential portions of the MPC. A majority of U.S. jurisdictions now use the concept of a “substantial step” to define attempt, rather than one of the older common law tests. Whether this change in the words used to define attempt makes a difference, or what difference it makes, is a difficult question. Again, the Mandujano court treated all common law definitions of attempt as more or less equivalent, and treated “substantial step” as roughly equivalent to the common law. In People v. Acosta, presented later in this chapter, a New York court characterizes its common law dangerous proximity test as “apparently more stringent” than the substantial step test. But the dissent in Acosta observes that at the defendant’s trial, the jury was mistakenly instructed on the substantial step test rather than the dangerous proximity test—and no one objected!
11. If redefining attempt along MPC lines does make a difference, how can we ascertain that difference? As noted in the next case in this chapter, the drafters of the MPC made clear that they intended the “substantial step” test to broaden the definition of attempt, making it possible to punish a greater range of preparatory actions. It is not clear whether lay jurors do or would actually interpret the language as the MPC drafters intended. One experimental study found that laypersons interpreted “substantial step” language more narrowly, not more broadly, than common law language such as “dangerous proximity.” Avani Mehta Sood, Attempted Justice: Misunderstandings and Bias in Psychological Constructions of Criminal Attempt, 71 Stan. L. Rev. 593 (2019). Sood’s study relied on experiments in which participants were asked to pretend to be jurors, not actual data from real prosecutions and convictions. In a world of guilty pleas, most convictions for attempted crimes are not based on jury deliberations at all. If legal professionals, including prosecutors and judges, believe that “substantial step” definitions of attempt reach more broadly than the common law tests, that belief could affect these professionals’ willingness to bring attempt charges or uphold attempt convictions.
12. Professor Sood’s article also investigates ways in which decisionmakers’ cognitive biases might operate through attempt doctrine. Her experimental studies asked participants to evaluate the criminal responsibility of a Muslim defendant and a Christian defendant, each charged with an attempted offense. Participants were likely to judge the hypothetical Muslim defendant more harshly even when the fact scenario was written to suggest this defendant’s innocence. Professor Sood suggests that “lay constructions of criminal intent may inadvertently operate as a vehicle for discriminatory decisionmaking.” 71 Stan. L. Rev. at 654. Because we cannot “know” another person’s thoughts in the same sense that we can know (of) their actions, we inevitably rely on conjecture and guesswork when we attribute intentions to someone. In that process of attribution, cognitive biases appear to play a role. For this reason, several commentators have suggested that as criminal liability becomes more heavily based on judgments about intent, the more likely it is that racial bias will shape impositions of criminal liability. See, e.g., Luis Chiesa, The Model Penal Code, Mass Incarceration, and the Racialization of American Criminal Law, 25 Geo. Mason L. Rev. 605, 609 (2018) (critiquing the Model Penal Code’s definition of attempt for its emphasis on intention, and suggesting that the MPC has “made it easier for racial bigotry to slip through the seams of criminal law doctrine”).
Check Your Understanding (8-2)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
South Dakota Codified Laws § 22-4-1. Attempt
Unless specific provision is made by law, any person who attempts to commit a crime and, in the attempt, does any act toward the commission of the crime, but fails or is prevented or intercepted in the perpetration of that crime, is punishable for such attempt at maximum sentence of one-half of the penalty prescribed for the underlying crime…
South Dakota Codified Laws § 22-16-4. Homicide as murder in the first degree
Homicide is murder in the first degree:
(1) If perpetrated without authority of law and with a premeditated design to effect the death of the person killed or of any other human being, including an unborn child; or
(2) If committed by a person engaged in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, or unlawful throwing, placing, or discharging of a destructive device or explosive.
STATE of South Dakota, Plaintiff and Appellee
v.
Rocco William DISANTO, Defendant and Appellant
Supreme Court of South Dakota
688 N.W.2d 201
Decided Oct. 6, 2004
KONENKAMP, Justice.
… Defendant, Rocco William “Billy” Disanto, and Linda Olson lived together for two years and were engaged for a short time. But their turbulent relationship ended in January 2002. Olson soon began a new friendship with Denny Egemo, and in the next month, they moved in together. Obsessed with his loss, defendant began making threatening telephone calls to Olson and Egemo. He told them and others that he was going to kill them. He also sued Olson claiming that she was responsible for the disappearance of over \$15,000 in a joint restaurant venture.
On February 17, 2002, while gambling and drinking at [a hotel], defendant told a woman that he intended “to shoot his ex-girlfriend, to kill her, to shoot her new lover in the balls so that he would have to live with the guilt, and then he was going to kill himself.” As if to confirm his intention, defendant grabbed the woman’s hand and placed it on a pistol in his jacket. The woman contacted a hotel security officer who in turn called the police. Defendant was arrested and a loaded .25 caliber pistol was taken from him.
In a plea bargain, defendant pleaded guilty to possession of a concealed pistol without a permit and admitted to a probation violation… While in the penitentiary [for these offenses], defendant met Stephen Rynders. He told Rynders of his intention to murder Olson and her boyfriend. Rynders gave this information to law enforcement and an investigation began. In June 2002, defendant was released from prison. Upon defendant’s release, Rynders, acting under law enforcement direction, picked defendant up and offered him a ride… At the suggestion of the investigators, Rynders told defendant that he should hire a contract killer who Rynders knew in Denver.
On the afternoon of June 11, 2002, Rynders and Dale McCabe, a law enforcement officer posing as a killer for hire from Denver, met twice with defendant. Much of their conversation was secretly recorded. Defendant showed McCabe several photos of Olson and gave him one, pointed out her vehicle, led him to the location of her home, and even pointed Olson out to him as she was leaving her home. In between his meetings with McCabe that afternoon, by chance, defendant ran into Olson on the street. Olson exclaimed, “I suppose you’re going to kill me.” “Like a dog,” defendant replied.
Shortly afterwards in their second meeting, defendant told McCabe, “I want her and him dead.” “Two shots in the head.” With only one shot, he said, “something can go wrong.” If Olson’s teenage daughter happened to be present, then defendant wanted her killed too: “If you gotta, you gotta, you know what I mean.” He wanted no witnesses. He suggested that the murders should appear to have happened during a robbery. Because defendant had no money to pay for the murders, he suggested that jewelry and other valuables in the home might be used as partial compensation. He told McCabe that the boyfriend, Egemo, was known to have a lot of cash. Defendant also agreed to pay for the killings with some methamphetamine he would later obtain.
At 3:00 p.m., defendant and McCabe appeared to close their agreement with the following exchange:
McCabe: So hey, just to make sure, no second thoughts or….
Defendant: No, none.
McCabe: You sure, man?
Defendant: None.
McCabe: Okay.
Defendant: None.
McCabe: The deal’s done, man.
Defendant: It’s a go.
McCabe: OK. Later. I’ll call you tonight.
Defendant: Huh?
McCabe: I’ll call you tonight.
Defendant: Thank you.
McCabe would later testify that as he understood their transaction, “the deal was sealed at that point” and the killings could be accomplished “from that time on until whenever I decided to complete the task.”
Less than three hours later, however, defendant, seeking to have a message given to McCabe, called Rynders telling him falsely that a “cop stopped by here” and that Olson had spotted McCabe’s car with its Colorado plates, that Olson had “called the cops,” that defendant was under intense supervision, and that now the police were alerted because of defendant’s threat against Olson on the street. All of this was untrue. Defendant’s alarm about police involvement was an apparent ruse to explain why he did not want to go through with the killings.
Defendant: So, I suggest we halt this. Let it cool down a little bit….
Rynders: Okay.
* * *
Defendant: So I don’t know if that house (Olson’s) is being watched, do you know what I’m saying?
Rynders: Okay.
* * *
Defendant: And, ah, the time is not right right now. I’m just telling you, I, I don’t feel it. I feel, you know what I mean. I’m not backing out of it, you know what I’m saying.
Rynders: Um hm.
Defendant: But, ah, the timing. You know what I mean. I just got out of prison, right?
* * *
Defendant: So, ah, I’m just telling you right now, put it on hold.
Rynders: Okay.
Defendant: And that’s the final word for the simple reason, ah, I don’t want nothing to happen to [McCabe], you know what I mean?
* * *
Defendant: Let it cool down. Plus let’s let ‘em make an offer …. [referring to defendant’s lawsuit against Olson]
Rynders: Well, I have no clue where [McCabe is] at right now.
Defendant: Oh, God. You got a cell number?
* * *
Defendant: Get it….
Defendant: I just don’t feel good about it to be honest and I’ll tell ‘ya, I’ve got great intuition.
Rynders: Okay.
* * *
Defendant: So, I mean, just let him [McCabe] know. Alright buddy?
Rynders: Okay.
Defendant: Get to him. He’s gonna call me at 11 tonight.
Despite this telephone call, the next day, McCabe, still posing as a contract killer, came to defendant at his place of employment with Olson’s diamond ring to verify that the murders had been accomplished. McCabe drove up to defendant and beckoned him to his car.
McCabe: Hey, man. Come here. Come here. Come here. Jump in, man. Jump in, dude.
Defendant: You sure?
McCabe: Jump in.
Defendant: I can’t, I can’t leave the bakery. I ain’t got the key.
McCabe: Fuck, I gotta get the fuck out of here, dude. It’s done, man. Fuckin’ done, dude.
Defendant: Okay. I don’t wanna know nothin’ about it.
McCabe: All right. Check this out, man. [Showing him Olson’s diamond ring.]
Defendant: No.
McCabe: Here.
Defendant: I don’t wanna see nothin’.
McCabe: I got that shit.
Defendant: Good.
* * *
McCabe: Hey. You still owe me some shit, man.
Defendant: Guaranteed.
Defendant was arrested and charged with three counts of attempted murder. He was also charged with one count of simple assault for the threat he made against Olson on the street….
A jury convicted defendant of all charges. He was sentenced to three concurrent thirty-year terms of imprisonment in the South Dakota State Penitentiary. In addition, he received a concurrent 365 days in jail. He was fifty-nine years old at the time. These sentences were consecutive to the unfinished two-year term defendant was to serve for his prior felony conviction. …
Defendant argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to offer sufficient evidence to sustain a conviction on the three counts of attempted murder. …
In defining the crime of attempt, we begin with our statute, [which] states that “Any person who attempts to commit a crime and in the attempt does any act toward the commission of the crime, but fails or is prevented or intercepted in the perpetration thereof, is punishable” as therein provided. To prove an attempt, therefore, the prosecution must show that defendant (1) had the specific intent to commit the crime, (2) committed a direct act toward the commission of the intended crime, and (3) failed or was prevented or intercepted in the perpetration of the crime.
We need not linger on the question of intent. Plainly, the evidence established that defendant repeatedly expressed an intention to kill Olson and Egemo, as well as Olson’s daughter, if necessary. As McCabe told the jury, defendant “was a man on a mission to have three individuals murdered.”
Defendant does not claim error in any of the court’s instructions to the jury. The jury was instructed in part that
Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt; but acts of a person who intends to commit a crime will constitute an attempt when they themselves clearly indicate a certain, unambiguous intent to commit that specific crime, and in themselves are an immediate step in the present commission of the criminal design, the progress of which would be completed unless interrupted by some circumstances not intended in the original design. The attempt is the direct movement toward commission of the crime after the preparations are made.
Once a person has committed acts which constitute an attempt to commit a crime, that person cannot avoid responsibility by not proceeding further with the intent to commit the crime, either by reason of voluntarily abandoning the purpose or because of a fact which prevented or interfered with completing the crime.
However, if a person intends to commit a crime but before the commission [of] any act toward the ultimate commission of the crime, that person freely and voluntarily abandons the original intent and makes no effort to accomplish it, the crime of attempt has not been committed.
Defendant contends that he abandoned any attempt to murder when he telephoned Rynders to “halt” the killings. The State argued to the jury that defendant committed an act toward the commission of first degree murder by giving the “hit-man” a final order to kill, thus making the crime of attempt complete. If he went beyond planning to the actual commission of an act, the State asserted, then a later abandonment would not extricate him from responsibility for the crime of attempted murder. On the other hand, if he only wanted to postpone the crime, then, the State contended, his attempt was merely delayed, not abandoned.
On the question of abandonment, it is usually for the jury to decide whether an accused has already committed an act toward the commission of the murders. Once the requisite act has been committed, whether a defendant later wanted to abandon or delay the plan is irrelevant. As Justice Mosk of the California Supreme Court wrote,
It is obviously impossible to be certain that a person will not lose his resolve to commit the crime until he completes the last act necessary for its accomplishment. But the law of attempts would be largely without function if it could not be invoked until the trigger was pulled, the blow struck, or the money seized. If it is not clear from a suspect’s acts what he intends to do, an observer cannot reasonably conclude that a crime will be committed; but when the acts are such that any rational person would believe a crime is about to be consummated absent an intervening force, the attempt is under way, and a last-minute change of heart by the perpetrator should not be permitted to exonerate him.
People v. Dillon (Cal. 1983).
The more perplexing question here is whether there was evidence that, in fulfilling his murderous intent, defendant committed an “act” toward the commission of first degree murder. Defendant contends that he never went beyond mere preparation. In State v. Martinez, this Court declared that the boundary between preparation and attempt lies at the point where an act “unequivocally demonstrate[s] that a crime is about to be committed.” Thus, the term “act” “presupposes some direct act or movement in execution of the design, as distinguished from mere preparation, which leaves the intended assailant only in the condition to commence the first direct act toward consummation of his design.” The unequivocal act toward the commission of the offense must demonstrate that a crime is about to be committed unless frustrated by intervening circumstances. However, this act need not be the last possible act before actual accomplishment of the crime to constitute an attempt.
We have no decisions on point in South Dakota; therefore, we will examine similar cases in other jurisdictions. In murder for hire cases, the courts are divided on how to characterize the offense: is it a solicitation to murder or an act toward the commission of murder? Most courts “take the view that the mere act of solicitation does not constitute an attempt to commit the crime solicited…” …
A majority of courts reason that a solicitation to murder is not attempted murder because the completion of the crime requires an act by the one solicited. … In State v. Otto, 629 P.2d 646 (1981), the defendant hired an undercover police officer to kill another police officer investigating the disappearance of the defendant’s wife. A divided Idaho Supreme Court reversed the attempted first-degree murder conviction, ruling that the act of soliciting the agent to commit the actual crime, coupled with the payment of \$250 and a promise of a larger sum after the crime had been completed, amounted to solicitation to murder rather than attempted murder. The court in Otto held that “[t]he solicit[ation] of another, assuming neither solicitor nor solicitee proximately acts toward the crime’s commission, cannot be held for an attempt. He does not by his incitement of another to criminal activity commit a dangerously proximate act of perpetration. The extension of attempt liability back to the solicitor destroys the distinction between preparation and perpetration.” In sum, “[n]either [the defendant in Otto] nor the agent ever took any steps of perpetration in dangerous proximity to the commission of the offense planned.”
Requisite to understanding the general rule “is the recognition that solicitation is in the nature of the incitement or encouragement of another to commit a crime in the future [and so] it is essentially preparatory to the commission of the targeted offense.” The Idaho Supreme Court made the rather pointed observation that “…jurisdictions faced with a general attempt statute and no means of severely punishing a solicitation to commit a felony might resort to the device of transforming the solicitor’s urgings into [an attempt,] but doing so violates the very essence of the requirement that a sufficient actus reus be proven before criminal liability will attach.”[3]
Cases like Davis [and] Otto … are helpful to our analysis because, at the time they were decided, the statutes or case law in those jurisdictions defined attempt in a way identical to our attempt statute. Under this formulation, there must be specific intent to commit the crime and also a direct act done towards its commission….
To understand the opposite point of view, we will examine cases following the minority rule. But before we begin, we must first consider the definition of attempt under the Model Penal Code, and distinguish cases decided under its formula. In response to court decisions that hiring another to commit murder did not constitute attempted murder, many jurisdictions created, sometimes at the urging of the courts, the offense of solicitation of murder. As an alternative, another widespread response was to adopt the definition of attempt under the Model Penal Code. This is because the Model Penal Code includes in criminal attempt much that was held to be preparation under former decisions. This is clear from the comments accompanying the definition of criminal attempt in Tentative Draft No. 10 (1960) of the American Law Institute’s Model Penal Code, Article 5 § 5.01. The intent was to extend the criminality of attempts by drawing the line further away from the final act, so as to make the crime essentially one of criminal purpose implemented by a substantial step highly corroborative of such purpose. … The Model Penal Code treats the solicitation of “an innocent agent to engage in conduct constituting an element of the crime,” if strongly corroborative of the actor’s criminal purpose, as sufficient satisfaction of the substantial step requirement to support a conviction for criminal attempt.
State v. Molasky (Mo. 1989) … is instructive. There, a conviction for attempted murder was reversed, but only because the conduct consisted solely of conversation, unaccompanied by affirmative acts. … [T]he court reasoned, “a substantial step is evidenced by actions, indicative of purpose, not mere conversation standing alone.” Acts evincing a defendant’s seriousness of purpose to commit murder, the Molasky Court suggested, might be money exchanging hands, concrete arrangements for payment, delivering a photograph of the intended victim, providing the address of the intended victim, furnishing a weapon, visiting the crime scene, waiting for the victim, or showing the hit man the victim’s expected route of travel. Therefore, under the relaxed standards of the Model Penal Code, evidence of an act in furtherance of the crime could include what defendant did here, provide a photograph of the intended victim and point out her home to the feigned killer. Molasky crystallizes our sense that without the expansive Model Penal Code definition of attempt, acts such as the ones defendant performed here are not sufficient under our definition to constitute attempt.
Knowing that the Model Penal Code relaxes the distinction between preparation and perpetration, we exclude from our analysis those murder for hire cases using some form of the Code’s definition of attempt. Obviously, we cannot engraft a piece of the Model Penal Code onto our statutory definition of attempt, for to do so would amount to a judicial rewriting of our statute. Nonetheless, there are several courts taking the minority position that solicitation of murder can constitute attempted murder, without reference to the Model Penal Code definition….
The minority view … is epitomized in the dissenting opinion in Otto, where it was noted that efforts to distinguish between “acts of preparation and acts of perpetration” are “highly artificial, since all acts leading up to the ultimate consummation of a crime are by their very nature preparatory.” For these courts, preparation and perpetration are seen merely as degrees on a continuum, and thus the distinction between preparation and perpetration becomes blurred.
In interpreting our law, all “criminal and penal provisions and all penal statutes are to be construed according to the fair import of their terms, with a view to effect their objects and promote justice.” SDCL 22-1-1. Under our longstanding jurisprudence, preparation and perpetration are distinct concepts. Neither defendant nor the feigned “hit man” committed an act “which would end in accomplishment, but for … circumstances occurring … independent of[] the will of the defendant.”
We cannot convert solicitation into attempt because to do so is obviously contrary to what the Legislature had in mind when it set up the distinct categories of solicitation and attempt. Indeed, the Legislature has criminalized other types of solicitations. See SDCL 22-43-2 (soliciting commercial bribe); SDCL 22-23-8 (pimping as felony); … SDCL 22-22-24.5 (solicitation of minor for sex); SDCL 16-18-7 (solicitation by disbarred or suspended attorney).
Beyond any doubt, defendant’s behavior here was immoral and malevolent. But the question is whether his evil intent went beyond preparation into acts of perpetration. Acts of mere preparation in setting the groundwork for a crime do not amount to an attempt. Under South Dakota’s definition of attempt, solicitation alone cannot constitute an attempt to commit a crime. Attempt and solicitation are distinct offenses. To call solicitation an attempt is to do away with the necessary element of an overt act. Worse, to succumb to the understandable but misguided temptation to merge solicitation and attempt only muddles the two concepts and perverts the normal and beneficial development of the criminal law through incremental legislative corrections and improvements. It is for the Legislature to remedy this problem, and not for us through judicial expansion to uphold a conviction where no crime under South Dakota law was committed.
Reversed.
SABERS, Justice (concurring).
I agree because the evidence indicates that this blundering, broke, inept 59 year-old felon, just out of prison, was inadequate to pursue or execute this crime without the motivating encouragement of his “friend from prison” and law enforcement officers. On his own, it would have been no more than a thought.
GILBERTSON, Chief Justice (dissenting).
… [Defendant’s acts were] far more than mere verbal solicitation of a hit man to accomplish the murders….
… Defendant argues that the evidence clearly demonstrates that Defendant’s actions in June 2002 did not go beyond mere preparation. Defendant cites the police’s failure to arrest Defendant after the June 11, 2002 meeting as proof of this proposition. Defendant also notes that his phone call to Rynders “clearly shows the Defendant put a halt to the attempted commission of the crime … but chose to do so by remaining friendly and cooperative with the hitman.”
Two distinct theories can be drawn from Defendant’s telephone conversation. The first, posited by Defendant, is that Defendant wished to extricate himself from an agreed upon murder, but leave the “hit man” with the perception that the deal remained in place. However, there is a second equally plausible theory which was presented by the State. That is, Defendant merely wanted to delay the previously planned murder, but leave the “hit man” with the knowledge that the deal remained in place.
Both theories were thoroughly argued to the jury. However, the jury chose to believe the State’s theory. Therefore, the jury could have properly concluded Defendant’s actions were “done toward the commission of the crime … the progress of which would be completed unless interrupted by some circumstances not intended in the original design” and not simply mere preparation.
… The Court today enters a lengthy analysis whether the acts constituted preparation or acts in the attempt to commit murder. … Minute examination between majority and minority views and “preparation” and “perpetration” conflict with the command of SDCL 22-1-1:
The rule of the common law that penal statutes are to be strictly construed has no application to this title. All its criminal and penal provisions and all penal statutes are to be construed according to the fair import of their terms, with a view to effect their objects and promote justice.
Here there was evidence that all that was left was to pull the trigger. As the Court acknowledges “the law of attempts would be largely without function if it could not be invoked until the trigger was pulled.” … Thus, I respectfully dissent.
ZINTER, Justice (dissenting).
I join the Court’s legal analysis concerning the distinction between solicitations and attempts to commit murder [and I join the Court’s analysis of abandonment]. Therefore, I agree that Disanto’s solicitation of McCabe, in and of itself, was legally insufficient to constitute an attempt to commit murder… However, I respectfully disagree with the Court’s analysis of the facts, which leads it to find as a matter of law that Disanto “committed [no] act toward the commission of the offense[].” …[E]ven setting aside Disanto’s solicitation, he still engaged in sufficient other “acts” toward the commission of the murder such that reasonable jurors could have found that he proceeded “so far that they would result in the accomplishment of the crime unless frustrated by extraneous circumstances.” The intended victims were clearly in more danger then than they were when Disanto first expressed his desire to kill them.
Specifically, Disanto physically provided McCabe with a photograph of the victim, he pointed out her vehicle, and he took McCabe to the victim’s home and pointed her out as she was leaving. None of these acts were acts of solicitation. Rather, they were physical “act[s going] toward the commission” of the murder.
Although it is acknowledged that the cases discussed by the Court have found that one or more of the foregoing acts can be part of a solicitation, Disanto’s case has one significant distinguishing feature. After his solicitation was completed, after the details were arranged, and after Disanto completed the physical acts described above, he then went even further and executed a command to implement the killing. In fact, this Court itself describes this act as the “final command” to execute the murder. Disanto issued the order: “It’s a go.” This act is not present in the solicitation cases that invalidate attempted murder convictions because they proceeded no further than preparation.
Therefore, when Disanto’s final command to execute the plan is combined with his history and other acts, this is the type of case that proceeded further than the mere solicitations and plans found insufficient in the case law. This combination of physical acts would have resulted in accomplishment of the crime absent the intervention of the law enforcement officer. Clearly, the victim was in substantially greater danger after the final command than when Disanto first expressed his desire to kill her. Consequently, there was sufficient evidence to support an attempt conviction.[4]
It bears repeating that none of the various “tests” used by courts in this area of the law can possibly distinguish all preparations from attempts. Therefore, a defendant’s entire course of conduct should be evaluated in light of his intent and his prior history in order to determine whether there was substantial evidence from which a reasonable trier of fact could have sustained a finding of an attempt. In making that determination, it is universally recognized that the acts of solicitation and attempt are a continuum between planning and perpetration of the offense…
…[I]t is generally the jury’s function to determine whether those acts have proceeded beyond mere planning. As this Court itself has noted, where design is shown, “courts should not destroy the practical and common sense administration of the law with subtleties as to what constitutes [the] preparation” to commit a crime as distinguished from acts done towards the commission of a crime. …We leave this question to the jury because “[t]he line between preparation and attempt is drawn at that point where the accused’s acts no longer strike the jury as being equivocal but unequivocally demonstrate that a crime is about to be committed.”
I would follow that admonition and affirm the judgment of this jury. Disanto’s design, solicitation, physical acts toward commission of the crime and his final command to execute the murder, when considered together, unequivocally demonstrated that a crime was about to be committed. This was sufficient evidence from which the jury could have reasonably found that an attempt had been committed.
Notes and questions on State v. Disanto
1. This case introduces two new concepts important to the study of inchoate offenses: solicitation, discussed in this note and the next few notes, and abandonment, discussed below. “Solicitation” is, roughly, the crime of trying to get someone else to commit a crime. When solicitation began to be treated as a crime by common law courts in the nineteenth century, it was typically defined as the act of asking, inducing, advising, ordering, or otherwise encouraging someone else to commit a crime. No separate mental state requirement was typically identified, and some modern solicitation statutes also omit an explicit reference to mental states. However, courts typically interpret solicitation to require intent that the other person (the solicitee) commit the target crime. At the time Disanto was decided, South Dakota did not have a general solicitation statute. (That would soon change, as explained below.) Instead, separate statutes imposed criminal liability for certain types of offenses; it was a crime to solicit a bribe, for example, and a crime to solicit prostitution. But at the time that Mr. Disanto asked McCabe to kill Linda Olson, no statute made it criminal to solicit murder. Thus, the question before the state supreme court in this case was whether Disanto could be properly charged and convicted of attempted murder. Courts have divided on the question whether a solicitation—again, a request to someone else that they commit a crime—is itself sufficient to support attempt liability. What are the arguments for and against treating a solicitation as a form of attempt? There are a few different possible approaches that might be adopted by a jurisdiction: 1) all solicitations are attempts, making a separate crime of solicitation unnecessary; 2) some but not all solicitations are attempts; 3) solicitations are never attempts, but at least some solicitations should be separately criminalized; 4) solicitations are never attempts, and they should not be subject to criminal liability at all. Which position does the majority take? What about Justice Gilbertson? Justice Zinter?
2. One year after this case was decided, South Dakota adopted the following general solicitation statute:
Any person who, with the intent to promote or facilitate the commission of a crime, commands, hires, requests, or solicits another person to engage in specific conduct which would constitute the commission of such offense or an attempt to commit such offense, is guilty of criminal solicitation.
2005 South Dakota Laws Ch. 120, § 438, codified at SDCL § 22-4A-1. In 2021, the South Dakota Supreme Court, in an opinion by Justice Gilbertson (who dissented in Disanto), upheld a conviction under this statute for “solicitation to aid and abet a murder.” State v. Thoman, 955 N.W.2d 759 (2021). The defendant, William Thoman, had asked a friend “if he knew anyone that could do away with somebody,” and also asked the same friend to help him get a gun. Thoman expressed a desire to kill Dr. Mustafa Sahin, a doctor who had treated Thoman’s wife until her death from cancer. The friend, Kenneth Jones, later reported the conversation to law enforcement, who had Jones make a recorded phone call to Thoman.
[I]n the recorded conversation, Jones expressed concern for Thoman. He told Thoman that he was unable to come up with a gun. Jones encouraged Thoman to get help, but Thoman told Jones that talking to him was enough. Jones asked if Thoman was still hellbent on “smoking” the doctor; to which Thoman responded, “One way or another he’ll get taken care of, is the way I look at it; and if I can help that process along, by God I will.” Thoman later said, “As far as literally shooting the guy that’s what I would rather do, but he comes up to maybe my rib cage in height and I could just twist his head off. You know it would be just about as easy.” Thoman later told Jones a story about going into the chemotherapy department to discuss a bill. While there, he saw Dr. Sahin and said, “There’s that son of a bitch I’d like to get.” Thoman explained that he has been thinking about killing Dr. Sahin since the December or January before Kathy died. He commented that if you are going to have a plan you ought to have a good plan. Jones asked if he could have Thoman’s guns, to which Thoman responded that his guns are under lock and key, and he did not want to use his guns to kill Dr. Sahin because they have sentimental value. He further commented that shooting Dr. Sahin would be like “shooting a dog.” Thoman went on to say that he looked at the doors in the hospital’s chemotherapy department and noted that they are just wide enough to drive his truck through, but he did not act because he did not want to hurt other people besides the doctor. Thoman later stated that, if Jones had given him a gun, he would have needed the plan to come closer to fruition before acting, but he liked the option of personally killing Dr. Sahin. Then he said that right now it is just an option, and he would call Jones before he did anything.
Thoman, 955 N.W.2d at 764. Thoman was convicted of solicitation to murder under the new South Dakota statute. Should he have been convicted of attempted murder instead?
1. The Disanto majority states, “[p]lainly, the evidence established that defendant repeatedly expressed an intention to kill Olson and Egemo, as well as Olson’s daughter, if necessary. As McCabe told the jury, defendant ‘was a man on a mission to have three individuals murdered.’” Contrast the majority’s characterization of the defendant’s mental state to the concurring opinion, which finds that “the evidence indicates that this blundering, broke, inept 59-year-old felon … was inadequate to pursue or execute this crime without the motivating encouragement of his ‘friend from prison’ and law enforcement officers. On his own, it would have been no more than a thought.” Are these two characterizations of McCabe’s intentions (and actions) consistent? If not, which seems more accurate to you?
2. Disanto can help you refine your understanding of common law attempt terminology, including concepts discussed in Mandujano and the subsequent notes. The Disanto court distinguishes between “an unequivocal act [that] demonstrate[s] a crime is about to be committed unless frustrated by intervening circumstances” and “the last possible act before actual accomplishment of the crime.” Which of these two types of act is required to establish attempt liability in South Dakota?
3. Notice that South Dakota has repealed by statute the common law principle of strict construction of criminal statutes. Both the majority opinion and Chief Justice Gilbertson’s dissent quote Section 22-1-1, but the majority opinion leaves out the first sentence of the statute. Check Justice Gilbertson’s dissent for the longer quotation. Does the extra sentence make a difference to the way you read the rest of the statute? In legal writing, lawyers often think carefully about what to quote and which sources to use. Professional norms generally require lawyers to avoid deliberate misrepresentation of a source. It is important to remember that judicial opinions are also advocacy documents in a certain sense: the judge who authors an opinion wants his or her readers to view the result as the only or best outcome, even if there were multiple possible interpretations of the underlying texts.
4. Disanto argued that he “abandoned” any attempt to murder Olson. The majority suggests that “abandonment” is irrelevant if Disanto had already engaged in the “actus reus” of attempted murder—if he had taken sufficient action, along with his criminal intent, to become guilty of the crime of attempted murder. In some jurisdictions, however, a claim of “abandonment” can function as an affirmative defense to an attempted offense: even if the defendant has completed the necessary elements to be guilty of an attempted crime, his or her subsequent abandonment of the planned crime is relevant to criminal liability. For more on abandonment (sometimes called renunciation) as an affirmative defense, see People v. Acosta later in this chapter.
Check Your Understanding (8-3)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Impossibility
Michigan C.L.A. 750.92. Attempt to commit crime
Any person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows:
1. If the offense attempted to be committed is such as is punishable with death, the person convicted of such attempt shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years;
2. If the offense so attempted to be committed is punishable by imprisonment in the state prison for life, or for 5 years or more, the person convicted of such attempt shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or in the county jail not more than 1 year;
3. If the offense so attempted to be committed is punishable by imprisonment in the state prison for a term less than 5 years, or imprisonment in the county jail or by fine, the offender convicted of such attempt shall be guilty of a misdemeanor, punishable by imprisonment in the state prison or reformatory not more than 2 years or in any county jail not more than 1 year or by a fine not to exceed 1,000 dollars; but in no case shall the imprisonment exceed ½ of the greatest punishment which might have been inflicted if the offense so attempted had been committed.
Michigan C.L.A. 750.157b. Solicitation to commit murder or other felony; affirmative defense
(1) For purposes of this section, “solicit” means to offer to give, promise to give, or give any money, services, or anything of value, or to forgive or promise to forgive a debt or obligation.
(2) A person who solicits another person to commit murder, or who solicits another person to do or omit to do an act which if completed would constitute murder, is guilty of a felony punishable by imprisonment for life or any term of years.
(3) Except as provided in subsection (2), a person who solicits another person to commit a felony, or who solicits another person to do or omit to do an act which if completed would constitute a felony, is punishable as follows:
(a) If the offense solicited is a felony punishable by imprisonment for life, or for 5 years or more, the person is guilty of a felony punishable by imprisonment for not more than 5 years or by a fine not to exceed \$5,000.00, or both.
(b) If the offense solicited is a felony punishable by imprisonment for a term less than 5 years or by a fine, the person is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or by a fine not to exceed \$1,000.00, or both, except that a term of imprisonment shall not exceed ½ of the maximum imprisonment which can be imposed if the offense solicited is committed.
(4) It is an affirmative defense to a prosecution under this section that, under circumstances manifesting a voluntary and complete renunciation of his or her criminal purpose, the actor notified the person solicited of his or her renunciation and either gave timely warning and cooperation to appropriate law enforcement authorities or otherwise made a substantial effort to prevent the performance of the criminal conduct commanded or solicited, provided that conduct does not occur. The defendant shall establish by a preponderance of the evidence the affirmative defense under this subsection.
Michigan C.L.A. 722.675. Dissemination of sexually explicit material to minors
(1) A person is guilty of distributing obscene matter to a minor if that person does either of the following:
(a) Knowingly disseminates to a minor sexually explicit visual or verbal material that is harmful to minors.
* * *
(2) A person knowingly disseminates sexually explicit matter to a minor when the person knows both the nature of the matter and the status of the minor to whom the matter is disseminated.
(3) A person knows the nature of matter if the person either is aware of the character and content of the matter or recklessly disregards circumstances suggesting the character and content of the matter.
(4) A person knows the status of a minor if the person either is aware that the person to whom the dissemination is made is under 18 years of age or recklessly disregards a substantial risk that the person to whom the dissemination is made is under 18 years of age.
PEOPLE of the State of Michigan, Plaintiff–Appellant
v.
Christopher THOUSAND, Defendant–Appellee
Supreme Court of Michigan
631 N.W.2d 694
Decided July 27, 2001
YOUNG, J.
We granted leave in this case to consider whether the doctrine of “impossibility” provides a defense to a charge of attempt to commit an offense prohibited by law under M.C.L. § 750.92, or to a charge of solicitation to commit a felony under M.C.L. § 750.157b….
[Because this case has not yet been tried, our statement of facts is derived from preliminary hearings and documentation in the lower court record.] Deputy William Liczbinski was assigned by the Wayne County Sheriff’s Department to conduct an undercover investigation for the department’s Internet Crimes Bureau. Liczbinski was instructed to pose as a minor and log onto “chat rooms” on the Internet for the purpose of identifying persons using the Internet as a means for engaging in criminal activity.
On December 8, 1998, while using the screen name “Bekka,” Liczbinski was approached by defendant, who was using the screen name “Mr. Auto–Mag,” in an Internet chat room. Defendant described himself as a twenty-three-year-old male from Warren, and Bekka described herself as a fourteen-year-old female from Detroit. Bekka indicated that her name was Becky Fellins, and defendant revealed that his name was Chris Thousand. During this initial conversation, defendant sent Bekka, via the Internet, a photograph of his face.
From December 9 through 16, 1998, Liczbinski, still using the screen name “Bekka,” engaged in chat room conversation with defendant. During these exchanges, the conversation became sexually explicit. Defendant made repeated lewd invitations to Bekka to engage in various sexual acts, despite various indications of her young age.
During one of his online conversations with Bekka, after asking her whether anyone was “around there,” watching her, defendant indicated that he was sending her a picture of himself. Within seconds, Liczbinski received over the Internet a photograph of male genitalia. Defendant asked Bekka whether she liked and wanted it and whether she was getting “hot” yet, and described in a graphic manner the type of sexual acts he wished to perform with her. Defendant invited Bekka to come see him at his house for the purpose of engaging in sexual activity. Bekka replied that she wanted to do so, and defendant cautioned her that they had to be careful, because he could “go to jail.” Defendant asked whether Bekka looked “over sixteen,” so that if his roommates were home he could lie.
The two then planned to meet at an area McDonald’s restaurant at 5:00 p.m. on the following Thursday. Defendant indicated that they could go to his house, and that he would tell his brother that Bekka was seventeen. Defendant instructed Bekka to wear a “nice sexy skirt,” something that he could “get [his] head into.” Defendant indicated that he would be dressed in black pants and shirt and a brown suede coat, and that he would be driving a green Duster. Bekka asked defendant to bring her a present, and indicated that she liked white teddy bears.
On Thursday, December 17, 1998, Liczbinski and other deputy sheriffs were present at the … restaurant when they saw defendant inside a vehicle matching the description given to Bekka by defendant. Defendant … entered the restaurant. Liczbinski recognized defendant’s face from the photograph that had been sent to Bekka. Defendant looked around for approximately thirty seconds before leaving the restaurant. Defendant was then taken into custody [and his vehicle and home were searched].
Following a preliminary examination, defendant was bound over for trial on charges of solicitation to commit third-degree criminal sexual conduct, attempted distribution of obscene material to a minor, and child sexually abusive activity…
Defendant brought a motion to quash the information, arguing that, because the existence of a child victim was an element of each of the charged offenses, the evidence was legally insufficient to support the charges. The circuit court agreed and dismissed the case, holding that it was legally impossible for defendant to have committed the charged offenses. The Court of Appeals affirmed the dismissal of the charges of solicitation and attempted distribution of obscene material to a minor….
The doctrine of “impossibility” as it has been discussed in the context of inchoate crimes represents the conceptual dilemma that arises when, because of the defendant’s mistake of fact or law, his actions could not possibly have resulted in the commission of the substantive crime underlying an attempt charge. Classic illustrations of the concept of impossibility include: (1) the defendant is prosecuted for attempted larceny after he tries to “pick” the victim’s empty pocket; (2) the defendant is prosecuted for attempted rape after he tries to have nonconsensual intercourse, but is unsuccessful because he is impotent; (3) the defendant is prosecuted for attempting to receive stolen property where the property he received was not, in fact, stolen; and (4) the defendant is prosecuted for attempting to hunt deer out of season after he shoots at a stuffed decoy deer. In each of these examples, despite evidence of the defendant’s criminal intent, he cannot be prosecuted for the completed offense of larceny, rape, receiving stolen property, or hunting deer out of season, because proof of at least one element of each offense cannot be derived from his objective actions. The question, then, becomes whether the defendant can be prosecuted for the attempted offense, and the answer is dependent upon whether he may raise the defense of “impossibility.”
Courts and legal scholars have drawn a distinction between two categories of impossibility: “factual impossibility” and “legal impossibility.” It has been said that, at common law, legal impossibility is a defense to a charge of attempt, but factual impossibility is not. See American Law Institute, Model Penal Code and Commentaries (1985), comment to § 5.01; Dressler, Understanding Criminal Law… However, courts and scholars alike have struggled unsuccessfully over the years to articulate an accurate rule for distinguishing between the categories of “impossibility.”
“Factual impossibility,” which has apparently never been recognized in any American jurisdiction as a defense to a charge of attempt, “exists when [the defendant’s] intended end constitutes a crime but she fails to consummate it because of a factual circumstance unknown to her or beyond her control.” An example of a “factual impossibility” scenario is where the defendant is prosecuted for attempted murder after pointing an unloaded gun at someone and pulling the trigger, where the defendant believed the gun was loaded.
“Pure legal impossibility exists if the criminal law does not prohibit D’s conduct or the result that she has sought to achieve.” In other words, the concept of pure legal impossibility applies when an actor engages in conduct that he believes is criminal, but is not actually prohibited by law: “There can be no conviction of criminal attempt based upon D’s erroneous notion that he was committing a crime.” As an example, consider the case of a man who believes that the legal age of consent is sixteen years old, and who [correctly] believes that a girl with whom he had consensual sexual intercourse is fifteen years old. If the law actually fixed the age of consent at fifteen, this man would not be guilty of attempted statutory rape, despite his mistaken belief that the law prohibited his conduct.
[Separately,]
Courts have recognized a defense of legal impossibility or have stated that it would exist if D receives unstolen property believing it was stolen;… offers a bribe to a “juror” who is not a juror; tries to hunt deer out of season by shooting a stuffed animal; shoots a corpse believing that it is alive; or shoots at a tree stump believing that it is a human.
Notice that each of the mistakes in these cases affected the legal status of some aspect of the defendant’s conduct. The status of property as “stolen” is necessary to commit the crime of “receiving stolen property with knowledge it is stolen”—i.e., a person legally is incapable of committing this offense if the property is not stolen. The status of a person as a “juror” is legally necessary to commit the offense of bribing a juror. The status of a victim as a “human being” (rather than as a corpse, tree stump, or statue) legally is necessary to commit the crime of murder or to “take and carry away the personal property of another.” Finally, putting a bullet into a stuffed deer can never constitute the crime of hunting out of season.
Dressler, supra.
… It is notable that “the great majority of jurisdictions have now recognized that legal and factual impossibility are ‘logically indistinguishable’ … and have abolished impossibility as a defense.” … In other jurisdictions, courts have considered the “impossibility” defense under attempt statutes that did not include language explicitly abolishing the defense. Several of these courts have simply declined to participate in the sterile academic exercise of categorizing a particular set of facts as representing “factual” or “legal” impossibility, and have instead examined solely the words of the applicable attempt statute.
The Court of Appeals panel in this case … concluded that it was legally impossible for defendant to have committed the charged offense of attempted distribution of obscene material to a minor. The panel held that, because “Bekka” was, in fact, an adult, an essential requirement of the underlying substantive offense was not met (dissemination to a minor), and therefore it was legally impossible for defendant to have committed the crime.
We begin by noting that the concept of “impossibility,” in either its “factual” or “legal” variant, has never been recognized by this Court as a valid defense to a charge of attempt. …
Finding no recognition of impossibility in our common law, we turn now to the terms of the statute. MCL 750.92 provides, in relevant part:
Any person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows…
… We are unable to discern from the words of the attempt statute any legislative intent that the concept of “impossibility” provide any impediment to charging a defendant with, or convicting him of, an attempted crime, notwithstanding any factual mistake—regarding either the attendant circumstances or the legal status of some factor relevant thereto—that he may harbor. The attempt statute carves out no exception for those who, possessing the requisite criminal intent to commit an offense prohibited by law and taking action toward the commission of that offense, have acted under an extrinsic misconception.
Defendant in this case is not charged with the substantive crime of distributing obscene material to a minor. It is unquestioned that defendant could not be convicted of that crime, because defendant allegedly distributed obscene material not to “a minor,” but to an adult man. Instead, defendant is charged with the distinct offense of attempt, which requires only that the prosecution prove intention to commit an offense prohibited by law, coupled with conduct toward the commission of that offense. The notion that it would be “impossible” for the defendant to have committed the completed offense is simply irrelevant to the analysis. Rather, in deciding guilt on a charge of attempt, the trier of fact must examine the unique circumstances of the particular case and determine whether the prosecution has proven that the defendant possessed the requisite specific intent and that he engaged in some act “towards the commission” of the intended offense.
Because the nonexistence of a minor victim does not give rise to a viable defense to the attempt charge in this case, the circuit court erred in dismissing this charge on the basis of “legal impossibility.”
Defendant was additionally charged, on the basis of his Internet conversations with “Bekka,” with solicitation to commit third-degree criminal sexual conduct. [The applicable underlying statute provides that “[a] person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and … (a) [t]hat other person is at least 13 years of age and under 16 years of age.”] Defendant maintains that it was “legally impossible” for him to have committed this crime, because the underlying felony requires the existence of a child under the age of sixteen. The Court of Appeals panel agreed…
The Court of Appeals erred to the extent that it relied on the doctrine of “impossibility” as a ground for affirming the … dismissal of the solicitation charge. As we have explained, Michigan has never adopted the doctrine of impossibility as a defense in its traditional attempt context, much less in the context of solicitation crimes. Moreover, we are unable to locate any authority, and defendant has provided none, for the proposition that “impossibility” is a recognized defense to a charge of solicitation in other jurisdictions.
Nevertheless, the solicitation charge was properly dismissed for the reason that there is no evidence that defendant in our case solicited anyone “to commit a felony” or “to do or omit to do an act which if completed would constitute a felony”… Pursuant to the plain statutory language, the prosecution was required to present evidence that defendant requested that another person perform a criminal act. The evidence here shows only that defendant requested that “Bekka” engage in sexual acts with him. While the requested acts might well have constituted a crime on defendant’s part, “Bekka” (or Liczbinski) would not have committed third-degree criminal sexual conduct had she (or he) done as defendant suggested. As the Court of Appeals properly concluded:
What is lacking here is defendant’s request to another person to commit a crime. “Bekka,” the fourteen-year-old online persona of Deputy Liczbinski, was not asked to commit a crime. That is, while it would be a crime for defendant to engage in sexual intercourse with a fourteen-year-old girl, a fourteen-year-old girl is not committing a criminal offense (or at least not CSC–III) by engaging in sexual intercourse with an adult. Thus, whether we look at this case as defendant asking fourteen-year-old “Bekka” to engage in sexual intercourse with him or as defendant asking Deputy Liczbinski to engage in sexual intercourse with him, he did not ask another person to commit CSC–III…. For the above reasons we conclude that the trial court properly dismissed the charge of solicitation to commit criminal sexual conduct.
Accordingly, while the concept of “impossibility” has no role in the analysis of this issue, we agree with the panel’s conclusion that an element of the statutory offense is missing and that the solicitation charge was therefore properly dismissed….
MARILYN J. KELLY, J., (concurring in part and dissenting in part).
The majority errs in concluding that “legal impossibility” has never been adopted in Michigan…
People v. Tinskey (1975) held that the defendants could not be guilty of conspiracy to commit abortion because the woman who was to be aborted was not pregnant. The Court reasoned that the Legislature, in enacting the statute, purposely required that conspiracy to abort involve a pregnant woman. It thereby rejected prosecutions where the woman was not pregnant. It concluded that the defendants in Tinskey could not be prosecuted for conspiracy to commit abortion because one of the elements of the crime, a pregnant woman, could not be established.
Significantly, the Tinskey Court stated that “[t]he Legislature has not, as to most other offenses, so similarly indicated that impossibility is not a defense.” By this language, Tinskey expressly recognized the existence of the “legal impossibility” defense in the common law of this state. Even though the reference to “legal impossibility” regarding the crime of attempt may be dictum, the later statement regarding the “impossibility” defense was part of the reasoning and conclusion in Tinskey. This Court recognized the defense, even if it did not do so expressly concerning charges for attempt or solicitation.
… Even if “legal impossibility” were not part of Michigan’s common law, I would disagree with the majority’s interpretation of the attempt statute. It does not follow from the fact that the statute does not expressly incorporate the concept of impossibility that the defense is inapplicable.
Examination of the language of the attempt statute leads to a reasonable inference that the Legislature did not intend to punish conduct that a mistake of legal fact renders unprohibited. The attempt statute makes illegal an “… attempt to commit an offense prohibited by law ….” It does not make illegal an action not prohibited by law. Hence, one may conclude, the impossibility of completing the underlying crime can provide a defense to attempt.
This reasoning is supported by the fact that the attempt statute codified the common-law rule regarding the elements of attempt. At common law, “legal impossibility” is a defense to attempt….
This state’s attempt statute, unlike the Model Penal Code and various state statutes that follow it, does not contain language allowing for consideration of a defendant’s beliefs regarding “attendant circumstances.” Rather, it takes an “objective” view of criminality, focusing on whether the defendant actually came close to completing the prohibited act. The impossibility of completing the offense is relevant to this objective approach because impossibility obviates the state’s “concern that the actor may cause or come close to causing the harm or evil that the offense seeks to prevent.”
The majority’s conclusion, that it is irrelevant whether it would be impossible to have committed the completed offense, contradicts the language used in the attempt statute. If an element of the offense cannot be established, an accused cannot be found guilty of the prohibited act. The underlying offense in this case, disseminating or exhibiting sexual material to a minor, requires a minor recipient. Because the dissemination was not to a minor, it is legally impossible for defendant to have committed the prohibited act.
…As judges, we often decide cases involving disturbing facts. However repugnant we personally find the criminal conduct charged, we must decide the issues on the basis of the law. I certainly do not wish to have child predators loose in society. However, I believe that neither the law nor society is served by allowing the end of removing them from society to excuse unjust means to accomplish it. In this case, defendant raised a legal impossibility argument that is supported by Michigan case law. The majority, in determining that legal impossibility is not a viable defense in this state, ignores that law….
Notes and questions on People v. Thousand
1. The prosecution initially charged Thousand with a completed offense of 722.675, distribution of explicit material to a minor. That statute is reprinted just before the case. The prosecution later moved to withdraw that charge and replace it with an attempted distribution charge. Why did the prosecution make this change?
2. This court rejects “impossibility” as a limitation on attempt liability. But what does it mean to say that an attempt is impossible? Sometimes, the term is used to describe a defendant who tries to engage in conduct that is not actually criminal; that is “pure legal impossibility” in the words of this court. In that case, it is impossible to commit the underlying crime because there is no underlying crime. Aside from this situation, the label “impossibility” is contested. If a person decides to hunt deer out of season and shoots an animal that turns out to be a decoy rather than a real deer, has this person engaged in an “impossible” attempt? For information on Indiana’s Robo-Deer enforcement program, see https://indianapublicmedia.org/news/dnr-sting-op-stifel-road-hunting.php.
3. Review the Model Penal Code’s definition of attempt (reprinted in the notes after Mandujano). The MPC makes the issue of impossibility mostly irrelevant by defining attempt to include acts that would constitute a crime, or a substantial step toward a crime, “if the attendant circumstances were as [the defendant] believes them to be.” So a person who tries to bribe a “juror,” though mistaken about whether his bribe is going to someone who really is a juror, is as guilty as a person who tries to bribe an actual juror.
4. In the dissenting opinion in Thousand, the question whether “impossibility” should limit attempt liability requires us to consider the underlying rationale for punishing attempt at all. Judge Kelly writes, “impossibility obviates the state’s concern that the actor may cause or come close to causing the harm or evil that the offense seeks to prevent.” Does it seem correct to you that attempt doctrine is based on a worry about risks of harm? Should a defendant’s liability for an attempted offense depend on the defendant’s likelihood of success? What other rationales might explain the choice to criminalize attempts?
5. Note that Michigan has both a general attempt statute and a general solicitation statute, both reprinted before this case. Christopher Thousand was charged with solicitation to commit third-degree sexual conduct, but attempted distribution of obscene material to a minor. The solicitation charge and the attempt charge were paired with two different underlying offenses. But could Thousand have been charged, or convicted, with solicitation and attempt with regard to the same underlying crime? That is, could he have been charged with solicitation to commit third-degree sexual conduct and attempted third-degree sexual conduct? Many courts hold that solicitation “merges” with attempt so that a defendant can be convicted of either solicitation or attempt for a given act, but not both of these inchoate crimes.
6. Why did the Michigan Supreme Court conclude that Thousand’s solicitation charge (but not the attempt charge) was properly dismissed? The court rejected the language of impossibility, but is this a case of what the court earlier called “pure legal impossibility”?
Check Your Understanding (8-4)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Renunciation or Abandonment
N.Y. Penal Law § 110.00. Attempt to commit a crime
A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.
N.Y. Penal Law § 40.10(3)
In any prosecution pursuant to section 110.00 for an attempt to commit a crime, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant avoided the commission of the crime attempted by abandoning his criminal effort and, if mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof.
Penal Law § 220.21 [as amended in 2004]
A person is guilty of criminal possession of a controlled substance in the first degree when he or she knowingly and unlawfully possesses:
1. one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of eight ounces or more; or
2. methadone and said methadone weighs five thousand seven hundred sixty milligrams or more.
The PEOPLE of the State of New York, Appellant
v.
Andre ACOSTA, Respondent
Court of Appeals of New York
80 N.Y.2d 665
Feb. 16, 1993
KAYE, Judge.
A person who, with intent to possess cocaine, orders from a supplier, admits a courier into his or her home, examines the drugs and ultimately rejects them because of perceived defects in quality, has attempted to possess cocaine within the meaning of the Penal Law. As the evidence was legally sufficient to establish this sequence of events, we reinstate defendant’s conviction of attempted criminal possession of a controlled substance in the first degree.
I.
By jury verdict, defendant was convicted of conspiracy and attempted possession of cocaine. The latter charge—the only one at issue on this appeal—centers on the events of March 21, 1988.
Evidence at trial revealed that, commencing in November 1986, officers of the Manhattan North Narcotics Division began investigating the activities of defendant, his brother Miguel and others. Their investigation techniques included the use of an undercover officer to infiltrate the organization, stakeouts and court-authorized wiretaps. In July 1987 the undercover met with Miguel at a Manhattan apartment and purchased cocaine. At that time, Miguel introduced defendant to the officer, telling her that they “work together.”
A wiretap on defendant’s telephone at his Bronx apartment revealed that for several days prior to March 21, 1988, he was negotiating with Luis Rojas to purchase kilogram quantities of cocaine. [These conversations were routinely conducted in code words such as “tickets” or “tires” which the prosecution expert testified represented kilos of cocaine.] On March 21, at 11:37 a.m., Rojas called defendant and asked, “are you ready?” Defendant replied “come by here” and Rojas responded, “I’m going over.” At 11:42, defendant called “Frank,” an associate, and told him that he “spoke to the man” who would be “coming over here…. Right now.”
About a half hour later, around 12:15 p.m., officers staking out defendant’s six-floor apartment building saw a man pull up in a car, remove a black and white plastic bag from the trunk, and enter the building. The bag’s handles were stretched, indicating that the contents were heavy. At 12:30, the man emerged from the building, carrying the same plastic bag which still appeared to be heavy. He placed the bag back in the trunk and drove off.
Minutes later, at 12:37 p.m., defendant called Frank, stating that he “saw the man” but “those tickets … were no good; they weren’t good for the game man.” Frank wondered whether “they got more expensive, the seats” and defendant explained that they were the “same price and all” but they were “not the same seats … some seats real bad, very bad, very bad.” Defendant elaborated: “two pass tickets together on the outside stuck together, like a thing, like a ticket falsified. Then I told him to take it away, no, I don’t want any problems and anything you see.” Frank asked if defendant was told when the tickets would arrive, and defendant responded “No because who came was someone, somebody else, the guy, the messenger.” Defendant acknowledged that he “want[s] to participate in the game but if you can’t see it, you’re going to come out upset.”
At 12:50 p.m., Rojas called defendant and said something inaudible about “my friend.” Defendant responded, “Oh yes, but he left because (inaudible) it doesn’t fit me…. You told me it was the same thing, same ticket.” Rojas rejoined, “No. We’ll see each other at six.”
Finally, at 1:26 p.m., defendant telephoned Hector Vargas, who wanted to know “what happened?” Defendant said, “Nothing. I saw something there, what you wanted, but I returned it because it was a shit there.” Hector wanted to know, “like how?” but defendant simply responded, “No, no, a weird shit there.” Vargas suggested that he might be able to obtain something “white and good.”
The following day, defendant again called Vargas to discuss “the thing you told me about, you know what I’m referring to”. Defendant recommended that Vargas “go talk to him, talk to him personally and check it out.” Defendant thought that “it would be better if you took the tickets, at least one or whatever.”
At trial, in motions before and after the verdict, defendant argued that the foregoing evidence was insufficient to establish that he attempted to possess cocaine on March 21. The trial court rejected those arguments and sentenced defendant, upon the jury’s guilty verdict, to a prison term of 25 years to life, the maximum permitted by law. On appeal, a sharply divided Appellate Division reversed and vacated the attempted possession conviction, the majority concluding that “[e]ven were we to accept [the] attenuated inference that the visitor actually reached defendant’s apartment and offered his contraband to him, the remaining evidence shows defendant’s flat rejection of that offer, and thus total abandonment of the criminal enterprise with respect to this particular quantity of cocaine.” One of the dissenting Justices granted the People leave to appeal, and we now reverse.
II.
A person knowingly and unlawfully possessing a substance weighing at least four ounces and containing a narcotic drug is guilty of criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1] ). Under the Penal Law, “[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he [or she] engages in conduct which tends to effect the commission of such crime.” (Penal Law § 110.00.) While the statutory formulation of attempt would seem to cover a broad range of conduct—anything “tend[ing] to effect” a crime—case law requires a closer nexus between defendant’s acts and the completed crime.
In People v. Rizzo (NY 1927), we observed that in demarcating punishable attempts from mere preparation to commit a crime, a “line has been drawn between those acts which are remote and those which are proximate and near to the consummation.” In Rizzo, this Court drew that line at acts “very near to the accomplishment of the intended crime.” Though apparently more stringent than the Model Penal Code “substantial step” test—a test adopted by some Federal courts—in this State we have adhered to Rizzos “very near” or “dangerously near” requirement, despite the later enactment of Penal Law § 110.00. [But the statute interpreted in Rizzo, former Penal Law § 2, is similar to Penal Law §110.00.]
A person who orders illegal narcotics from a supplier, admits a courier into his or her home and examines the quality of the goods has unquestionably passed beyond mere preparation and come “very near” to possessing those drugs. Indeed, the only remaining step between the attempt and the completed crime is the person’s acceptance of the proffered merchandise, an act entirely within his or her control.
Our decision in People v. Warren (NY 1985) is thus readily distinguishable…. In that case, an informant and an undercover officer posing as a cocaine seller met defendants in a hotel room and reached an agreement for the sale of about half a pound. The actual exchange, however, was to occur hours later, in another part of town, after repackaging and testing. Moreover, when defendants were arrested at that meeting, the sellers had insufficient cocaine on hand and defendants had insufficient funds. We concluded that since “several contingencies stood between the agreement in the hotel room and the contemplated purchase,” defendants did not come “very near” to accomplishment of the intended crime. The same cannot be said here.
Significantly, neither the Appellate Division nor the dissent in this Court disputes the proposition that a person who arranges for the delivery of drugs and actually examines them has come sufficiently close to the completed crime to qualify as an attempt. Rather, the Appellate Division relies on two other grounds for reversal: (i) the evidence was insufficient to establish that defendant in fact met with a drug courier and examined his wares; and (ii) in any event, defendant’s ultimate rejection of the drugs constituted an abandonment of the criminal enterprise, vitiating the attempt. (The dissent in this Court is limited to the first ground.) Neither ground is persuasive.
Sufficiency of the Evidence
A jury, of course, concluded from the evidence presented that defendant attempted to possess cocaine on March 21, 1988. In examining the record for legal sufficiency, “the evidence must be viewed in a light most favorable to the People … to determine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” …
[W]e conclude that the evidence was legally sufficient to support the jury’s finding that defendant met with a drug courier in his home on March 21. About a half-hour after defendant’s supplier, Rojas, told defendant that he would be coming over, the police saw a man enter the apartment building with a weighted-down plastic bag and emerge 15 minutes later with the same heavy bag. Contemporaneously with the unidentified man’s departure, defendant reported to an associate that he met with a messenger but that he rejected the offer because the “seats” were “very bad” and the “tickets” looked “falsified.” When Rojas immediately called defendant asking about his “friend,” defendant explained that “he left” and complained that Rojas misrepresented that the “same ticket” would be brought. And shortly thereafter, defendant called Vargas and told him that he “saw something there, what you wanted, but I returned it because it was a shit there.”
On the evidence presented, a rational jury could have found beyond a reasonable doubt that defendant, with the intent to possess more than four ounces of a controlled substance, met with Rojas’ courier and examined cocaine, but rejected it because he was dissatisfied with the quality.
The dissent’s contrary conclusion is reachable only by arbitrarily fragmenting the evidence. …[T]he dissent claims that the “sole basis” for defendant’s guilt was a wiretapped conversation in which he told an individual that he had just rejected tickets.
The law, however, did not oblige the jury to take such an artificial view of the evidence. Rather, the jury function was to evaluate the trial evidence as a whole, to consider how the individualized bits of evidence fit together, including inferences from the evidence that rational individuals were entitled to draw. As background, the jury knew from defendant’s many earlier conversations about “tickets” and his meeting with the undercover that he was involved with drugs. Further, the jury knew that in the days immediately preceding March 21 defendant was negotiating with Rojas to buy kilos of cocaine and that on March 21 Rojas said that he was coming over. The unidentified man’s visit to the apartment building with the parcel—coinciding to the minute with defendant’s conversations—was fully consistent with defendant’s several later admissions that he had met with a courier but rejected his merchandise. While the dissent would ignore the totality of this evidence, the jury most assuredly was not required to do so.
Rejection as Abandonment
… Penal Law § 40.10(3) provides an affirmative defense to an attempt charge “under circumstances manifesting a voluntary and complete renunciation of [the] criminal purpose”. To qualify for this defense, “the abandonment must be permanent, not temporary or contingent, not simply a decision to postpone the criminal conduct until another time” …
An abandonment theory is inapposite here. First, abandonment is an affirmative defense, meaning that defendant has the burden of establishing it by a preponderance of the evidence. At trial, however, defendant never sought to present a renunciation defense. Second, and even more fundamentally, the evidence revealed that even after rejecting the March 21 offer, defendant continued making efforts to obtain cocaine. Thus, while it may be true that there was an abandonment “with respect to [that] particular quantity of cocaine,” this is immaterial for purposes of the statutory renunciation defense. Rather, there must be an abandonment of over-all criminal enterprise, which on this record plainly was not the case.
III.
… Accordingly, the order of the Appellate Division should be reversed, the conviction for attempted criminal possession of a controlled substance in the first degree reinstated, and the case remitted to that court for consideration of the facts….
SMITH, Judge (dissenting).
To uphold defendant’s conviction of an attempt, it must be shown beyond a reasonable doubt that his acts came “dangerously close” to committing the substantive crime. That someone got out of a car carrying a bag and entered the apartment building adds nothing to the proof of the attempted crime. There was no proof of who this man was, what was in the bag, where the man went inside the building or who owned the car. Any connection of this proof with defendant would necessarily be based on pure speculation. The critical question, then, is whether defendant’s wiretapped phone calls, standing alone, or even in conjunction with the evidence of a man and his bag, could constitute sufficient evidence for a finding of guilt. Without more, these phone conversations, and other evidence submitted, were insufficient to show that defendant came “dangerously close” to possessing drugs. I, therefore, dissent.
…A police officer assigned to stakeout defendant’s apartment building testified at trial that shortly after noon on March 21, 1988, he observed … a male Hispanic exit [a white] car, remove a black and white plastic bag with long, completely stretched handles from the trunk, and enter the courtyard leading to the building. No one followed the person into the building to ascertain where he went. The officer testified further that the same man left the building 15 minutes later with the same bag with similarly stretched handles…. The officer testified that he never stopped the driver of the white vehicle or ascertained what was in the bag. This incident, along with overheard conversations of defendant that he had rejected “tickets” (allegedly cocaine), presented the sole basis for convicting defendant of attempted possession of a controlled substance in the first degree.
Defendant was convicted, after a jury trial, of attempted criminal possession of a controlled substance in the first degree and conspiracy to possess a controlled substance in the second degree. [Footnote by the dissent: It should be noted that although no objection to it was made by either party, the court erroneously charged the Federal standard on attempt in that a “substantial step” is required for the completion rather than the New York standard of a requirement that conduct come “very near” or “dangerously near” to completion.]
…[T]he evidence adduced at trial does not establish that defendant came very near to the accomplishment of the crime of possession of a controlled substance in the first degree. According to the wiretap information, defendant had been anticipating a delivery of “tickets” from his suppliers for resale to a customer. The police observed an Hispanic male enter and leave the courtyard of the apartment building in which defendant lived carrying a heavy-laden shopping bag. The People assert that the unidentified male brought a supply of cocaine to defendant’s apartment and defendant rejected the supply. However, the stakeout police officer did not stop and question the Hispanic male or ascertain what was in the shopping bag, nor did he observe the male approach or enter defendant’s apartment. …[T]he testimony that an unidentified man entered and exited defendant’s apartment building amounts to no material evidence at all.
The sole basis for defendant’s guilt was the wiretap conversations in which defendant told another individual that he had just rejected a delivery of “tickets” as unacceptable because it was “no good” and “stuck together.” The evidence adduced simply does not establish beyond a reasonable doubt the attempted possession of cocaine by the defendant.
Check Your Understanding (8-5)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Notes and questions on People v. Acosta
1. Weights and measures: in New York, first degree possession of a controlled substance requires possession of a compound or substance that contains narcotics and has “an aggregate weight of eight ounces or more.” (At the time of Acosta, the minimum weight was only four ounces, as noted in the first sentence of Part II of the majority opinion.) Recall from Chapter Seven that the precise quantity of drugs possessed can be a significant determinant of the scope of criminal liability. When actual narcotics are seized by the police, the drugs (or a mixed substance containing the drugs) can be measured by law enforcement. In this case, no drugs were ever seized or otherwise handled by law enforcement. What evidence does the state use to prove the quantity of the drugs involved here?
2. In a footnote that is omitted here, the Acosta majority observed that New York law used to punish an attempted crime less severely than the completed underlying offense: someone convicted of attempted murder would be subject to a less severe sentence than someone convicted of murder itself. Subsequently, New York changed the penalty provisions to make an attempted offense punishable by the same range of penalties that apply to the completed offense. Thus, Andre Acosta could be given the same sentence that he might have received if he had actually possessed a controlled substance. This approach to grading attempt—that is, making it subject to the same penalties as those available for the underlying offense—is recommended in the Model Penal Code and adopted by many U.S. jurisdictions. There is considerable variation on this question, though; other states authorize lower maximum sentences for attempts than for the underlying offenses.
3. Given the penalty details just described, Andre Acosta, who refused to buy this cocaine, is subject to exactly the same criminal punishment to which he would have been subject had he purchased these drugs. Does that make sense? What rationale for attempt law best explains why Acosta should be punished, if indeed he should?
4. Why did the court reject Acosta’s claim of abandonment? The easier, and less interesting, answer is that Acosta did not make the claim in time. Because abandonment (or renunciation) is an affirmative defense in New York, it was up to the defendant to raise this argument at trial and present evidence to support it. Acosta did not do that. But the court identifies a second and “more fundamental” reason that the abandonment defense is not available to Acosta. What is that more fundamental argument?
5. New York is not unusual in offering only a minimal statutory definition of attempt: “A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.” But as the court notes, case law provides additional guidance. The court cites People v. Rizzo (1927), a classic case that is often used to demonstrate the common law “dangerous proximity” test of attempt. Here is the Rizzo court’s description of the facts of that case:
6.
Charles Rizzo, the defendant, appellant, with three others, Anthony J. Dorio, Thomas Milo and John Thomasello, on January 14th planned to rob one Charles Rao of a payroll valued at about \$1,200 which he was to carry from the bank for the United Lathing Company. These defendants, two of whom had firearms, started out in an automobile, looking for Rao or the man who had the payroll on that day. Rizzo claimed to be able to identify the man and was to point him out to the others who were to do the actual holding up. The four rode about in their car looking for Rao. They went to the bank from which he was supposed to get the money and to various buildings being constructed by the United Lathing Company. At last they came to One Hundred and Eightieth street and Morris Park avenue. By this time they were watched and followed by two police officers. As Rizzo jumped out of the car and ran into the building all four were arrested. The defendant was taken out from the building in which he was hiding. Neither Rao nor a man named Previti, who was also supposed to carry a payroll, were at the place at the time of the arrest. The defendants had not found or seen the man they intended to rob; no person with a payroll was at any of the places where they had stopped and no one had been pointed out or identified by Rizzo. The four men intended to rob the payroll man, whoever he was; they were looking for him, but they had not seen or discovered him up to the time they were arrested.
People v. Rizzo, 246 N.E. 334, 336 (1927). The Rizzo court found that the defendants were not guilty of attempted robbery, since robbery requires a specific victim and these defendants never located their intended victim.
In a word, these defendants had planned to commit a crime and were looking around the city for an opportunity to commit it, but the opportunity fortunately never came. Men would not be guilty of an attempt at burglary if they had planned to break into a building and were arrested while they were hunting about the streets for the building not knowing where it was. Neither would a man be guilty of an attempt to commit murder if he armed himself and started out to find the person whom he had planned to kill but could not find him. So here these defendants were not guilty of an attempt to commit robbery in the first degree when they had not found or reached the presence of the person they intended to rob.
Id. at 338. The court thus reversed Rizzo’s conviction—but not those of his co-defendants, because they had neglected to appeal!
A very strange situation has arisen in this case. …[The four defendants] were all tried together upon the same evidence, and jointly convicted, and all sentenced to State’s prison for varying terms. Rizzo was the only one of the four to appeal to the Appellate Division and to this court. …[W]e have now held that he was not guilty of the crime charged. If he were not guilty, neither were the other three. As the others, however, did not appeal, there is no remedy for them through the court; their judgments stand, and they must serve their sentences. This of course is a situation which must in all fairness be met in some way. Two of these men were guilty of the crime of carrying weapons, pistols, contrary to law, for which they could be convicted. Two of them, John Thomasello and Thomas Milo, had also been previously convicted, which may have had something to do with their neglect to appeal. However, the law would fail in its function and its purpose if it permitted these three men whoever or whatever they are to serve a sentence for a crime which the courts subsequently found and declared had not been committed. We, therefore, suggest to the district attorney of Bronx county that he bring the cases of these three men to the attention of the Governor to be dealt with as to him seems proper in the light of this opinion.
Id. at 339-340. As we have discussed many times, the vast majority of criminal convictions do not lead to an appeal.
1. One last note about People v. Rizzo: the New York court opened its opinion with praise for the police who arrested Rizzo and his codefendants: “The police of the city of New York did excellent work in this case by preventing the commission of a serious crime. It is a great satisfaction to realize that we have such wide-awake guardians of our peace. Whether or not the steps which the defendant had taken up to the time of his arrest amounted to the commission of a crime, as defined by our law, is, however, another matter.” Id. at 335. In the court’s view, Rizzo was properly arrested but not properly convicted. This distinction invites us to think again about the interaction of criminalization, enforcement, and adjudication decisions; the next section examines that interaction.
Enforcement Powers, Enforcement Choices
One possible rationale for the law of attempt is suggested by the Rizzo court’s praise for the New York police as “wide-awake guardians”: attempt doctrine exists to enable enforcement officials to intervene at an earlier stage. This function of attempt law is not often emphasized in contemporary discussions, in part because the powers of enforcement officials have been expanded in other ways that make attempt doctrine less important as a source of power for police. In this final section of the chapter, we consider inchoate offenses in the broader context of preventive intervention. One particularly important expansion of enforcement authority has been the Supreme Court’s endorsement of the idea that a police officer can stop, question, and frisk an individual as soon as the officer has “reasonable suspicion” that “criminal activity is afoot.” What does it mean for “criminal activity” to be “afoot”? Does it mean that a person is preparing to commit a crime, or already committing one? Does it allow intervention at “mere preparation,” before that preparation has crossed the line into an “attempt”? And what does it mean for a police officer to have “reasonable suspicion” that these things have occurred?
To consider these questions, please read the arrest report below. It is the report generated after the arrest that eventually led to Terry v. Ohio, the famous Supreme Court decision that establishes “stop-and-frisk” authority as constitutional. Thinking about Terry can help you review inchoate offenses, and it can also help you review the relationships among criminalization, enforcement, and adjudication decisions. Some questions for reflection follow the arrest report.
1. Notice that Officer McFadden’s arrest report requests that the defendants “be checked out by the Robbery Squad.” In later testimony before John Terry’s trial, McFadden explained that he thought Terry and his co-defendants might have been “casing a job, a stick-up.” Assume that at the time of John Terry’s arrest, the elements of robbery in Ohio were:
1) The taking of anything of value
2) From the person of another
3) By force or violence or by putting in fear
4) With intent to steal such property.
See State v. Carlisle, 181 N.E.2d 517 (Ohio 1961).
And assume that at the time of Terry’s arrest, a criminal attempt was defined under Ohio law “as consisting of three essentials”:
1. 1) An intent to perpetrate a criminal act,
2
) The performance of some overt act toward its commission,
3) The failure to consummate its commission.
See State v. Branch, 26 Ohio Law Abs. 261, 262 (Ohio 1937).
Given these Ohio definitions, and based on the evidence recited in the arrest report, do you think the prosecution would be able to prove beyond a reasonable doubt that Terry committed the crime of attempted robbery? What evidence establishes Terry’s intent? What is the overt act?
1. The arrest report states that Terry and his companions were looking repeatedly into the window of a United Airlines ticket office. Later, at trial, Officer McFadden testified that he wasn’t sure which window the men were looking into. Still later, after this case became famous, some commentators started to claim that Terry was looking into the window of a jewelry store, although there is no reference to a jewelry store in the arrest report. This idea might have arisen from the fact that one of the stores in the area, mentioned in testimony at a pretrial hearing, was called The Diamond Store. Apparently, it was not actually a jewelry store but a men’s clothing store owned by a family with the last name of Diamond. Does the kind of business make a difference to the attempt analysis?Does it make any difference to know that even in 1963, when McFadden arrested Terry, airline tickets were rarely purchased in cash?
2. Now, imagine that John Terry is arrested in New York instead of Ohio. Compare Terry’s actions to those of the defendants in People v. Rizzo, discussed in the notes after People v. Acosta. If the New York doctrinal test for attempt used in Rizzowere applied to Terry, would Terry be found guilty of attempted robbery? Do the facts of Rizzobetter support an attempted robbery conviction, or the facts of Terry? Or is the evidentiary support for attempted robbery about the same in both cases?
3. The previous questions are questions about conviction decisions—the finding that a particular defendant is in fact guilty and subject to punishment. Now, consider the enforcement decisions in these cases—the decision to arrest Rizzo and his acquaintances, and the decision to stop and frisk Terry (which, after the frisk revealed a gun, led to a decision to arrest Terry). Enforcement decisions do not require proof beyond a reasonable doubt or anything close to that level of confidence. Instead, an arrest requires “probable cause” to believe that a crime has been or is being committed by the person being arrested. Courts have struggled to define probable cause, but some typical explanations of the concept describe it as “a reasonable ground for belief of guilt” or “facts sufficient to warrant a reasonable person in the belief that the suspect has committed a crime.” The Supreme Court has emphasized that probable cause is a much lower standard – easier to satisfy – than proof beyond a reasonable doubt. “The term probable cause … means less than evidence which would justify condemnation. … It imports a seizure made under circumstances which warrant suspicion.” Locke v. United States (1813).
4. Given that probable cause is a kind of suspicion rather than a standard of proof, and that probable cause is a much lower standard to fulfill than “beyond a reasonable doubt,” it makes sense that the Rizzo court could see the police decision to arrest as praiseworthy, but nonetheless conclude that Rizzo was not properly convicted. In other words, the enforcement decision was justified, in the court’s view, but the conviction decision (or adjudication decision) was not supported by adequate evidence.
5. Consider again Officer McFadden’s observations and his enforcement decisions. If McFadden’s observations were sufficient to give him “a reasonable ground for belief” that Terry and Chilton were guilty of an offense, he would have “probable cause” to arrest them for that offense. Again, this “reasonable ground for belief” need not be confidence as strong as that required by the “beyond a reasonable doubt” standard. All the same, when Terry was prosecuted for weapons possession, the trial court held that “it ‘would be stretching the facts beyond reasonable comprehension’ to find that Officer McFadden had had probable cause to arrest the men before he patted them down for weapons.” Terry v. Ohio, 392 U.S. 1, 7-8 (1968) (quoting the trial court). Terry could not have been arrested for attempted robbery, on the Court’s analysis, and indeed he was never charged with that offense. Instead, as noted above, Terry was charged with weapons possession on the basis of the gun that Officer McFadden discovered during the frisk, and he was convicted of that offense. Terry appealed, arguing that the frisk had violated his constitutional right to be free from unreasonable searches and seizures, and thus the gun should have been excluded from evidence.
In the landmark Supreme Court case that eventually endorsed Officer McFadden’s enforcement decision, the Supreme Court accepted the trial court’s finding that McFadden did not have probable cause to arrest Terry for attempted robbery or some similar offense. But the Court held that McFadden acted lawfully when he approached Terry and his companions, ordered them to take hands out of their pockets, and searched their clothing for weapons—even though the men had left the scene of the suspected would-be robbery by the time McFadden stopped them:
He had observed Terry, together with Chilton and another man, acting in a manner he took to be preface to a ‘stick-up.’ We think on the facts and circumstances Officer McFadden detailed before the trial judge a reasonably prudent man would have been warranted in believing petitioner was armed and thus presented a threat to the officer’s safety while he was investigating his suspicious behavior. The actions of Terry and Chilton were consistent with McFadden’s hypothesis that these men were contemplating a daylight robbery—which, it is reasonable to assume, would be likely to involve the use of weapons—and nothing in their conduct from the time he first noticed them until the time he confronted them and identified himself as a police officer gave him sufficient reason to negate that hypothesis. Although the trio had departed the original scene, there was nothing to indicate abandonment of an intent to commit a robbery at some point.
Id. at 28. Terry v. Ohio thus became the Supreme Court’s official green-light for the police practice known as stop-and-frisk. A Terry stop is not itself an official arrest; it is a brief detention during which the officer can ask the suspect a few questions. If the officer suspects that the person stopped is “armed and dangerous,” the officer may “frisk” the person, patting down their clothing to look for weapons. Again, the Supreme Court did not require the officer to have probable cause to believe the suspect had committed any crime, or even probable cause to believe the suspect was armed, before stopping and frisking someone. Instead, the Court said, the officer could take these actions on the basis of a lower level of suspicion that has come to be called “reasonable suspicion.” As stated by the Terry Court,
where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the [Constitution], and any weapons seized may properly be introduced in evidence against the person from whom they were taken.
Id. at 30-31. The practice of stop-and-frisk is very important to the enforcement of drug and gun offenses; a frisk often allows the police to locate drugs or guns that would otherwise remain hidden from view. If an officer feels an object likely to be a gun—or drugs—he is permitted to remove it and, if he confirms that it appears to be contraband, he can seize it and arrest the individual who possessed it.
Thus, Terry v. Ohio illustrates well the interaction of criminalization, enforcement, and adjudication decisions. At one time, jurisdictions may have seen the criminalization of attempt as a necessary way to enable earlier enforcement intervention. As the powers of enforcement officials have expanded through constitutional doctrine, attempt law becomes less important in this way (though it is still important for other reasons). And the broad enforcement powers granted by Terry v. Ohio make conviction decisions much easier in some areas of law: stop-and-frisk enables police to locate contraband items that would otherwise remain hidden. As you saw in Chapter Seven, once police have found contraband on a person, it is relatively difficult for that person to avoid a possession conviction. Again, we can put these observations in terms of criminalization, enforcement, and adjudication decisions. The criminalization of drug and gun possession would not necessarily, by itself, lead to many actual convictions unless police had ways to determine who had drugs or guns in their possession. But the expansion of enforcement powers to include a broad authority to stop and frisk on the basis of an “hypothesis” that “criminal activity is afoot” enables police to detect the guns and drugs that then make adjudication decisions easy in possession cases.
1. Who are the police likely to find to be suspicious, and on what grounds? Minority communities have long complained that police use their broad discretion to stop and frisk in racially biased ways. Indeed, that very concern was noted by the Supreme Court in Terry, though the Court sustained stop-and-frisk authority regardless. In 2013, a federal court found that the New York Police Department had engaged in unconstitutional racial discrimination by stopping and frisking Black and Latino New Yorkers at disproportionate rates. See Floyd v. City of New York, 959 F. Supp.2d 540 (S.D.N.Y. 2013). Some of the evidence in Floyd came from a statistical analysis of thousands of UF-250 forms—the paperwork that NYPD officers are asked to complete when they stop a suspect. A blank UF-250 form was included in Chapter Three, and included here. This form asks police to record many details of a Terry stop, including the race of the person stopped and the officer’s stated reasons for making the stop. The statistical analysis of NYPD stops showed that officers stopped and frisked Black and Latino men disproportionately often, usually citing no basis for the officer’s suspicion other than the fact that the encounter occurred in a “high crime area” and/or the person made “furtive movements.” The overwhelming majority of these stops and frisks of persons of color led to no arrest and no discovery of contraband. Indeed, police were somewhat more likely to find contraband or make an arrest when they stopped white people, perhaps because police were more selective and looked for more reliable evidence of criminal activity before stopping white persons.
2. A final question: what exactly does it mean for an offense to be “inchoate”? This chapter has focused on attempt and solicitation, and the next chapter will discuss conspiracy as a criminal offense. Attempt, solicitation, and conspiracy are all doctrines that can apply transsubstantively – or across different types of crimes – to expand criminal liability so it reaches people who have taken some steps toward a specific crime but have not necessarily completed that crime. A person who has thought about committing a robbery but has not actually robbed might nonetheless be convicted (depending on the circumstances) of attempted robbery, solicitation to commit robbery, or conspiracy to commit robbery.
Sometimes, however, the term “inchoate offense” is used more broadly, to describe any offense that punishes conduct on the theory that the conduct represents a threat of some future harmful act. For example, some courts have characterized burglary as an inchoate offense: recall from Chapter Five that burglary is typically defined as the unlawful entry into a given place with the intent to commit a crime therein. One might view the unlawful entry as a wrong or harm in itself, and indeed, many jurisdictions do have independent offenses of trespass, “breaking and entering,” or “unlawful entry” that are separate from burglary and do not require proof of intent to commit some further offense. (See State v. Begaye in Chapter Five.) Burglary usually carries a more severe penalty than these other offenses, on the theory that a burglary conviction punishes the distinctive threat of the entry with the intent to do further wrong inside the designated location.
Now consider possession offenses, which were discussed at length in the previous chapter. Does a person who possesses drugs but does nothing with the drugs – does not consume or inject them, or distribute them to others – commit any harm worthy of legal intervention? Many courts and commentators have characterized possession offenses as inchoate offenses, reasoning that the underlying concern with possession is a worry that the possessor will take some further dangerous or harmful action.
Under this view, inchoate offenses are part of a preventive regime in which criminal law intervenes to stop harms before they occur. By necessity and by design, inchoate offenses will impose criminal liability on people who have not caused the tangible harm that motivates the law, but who are believed to pose a threat of causing that harm. In part because there is no need to show any evidence of tangible harm, enforcement officials and adjudicators will have broad discretion as they decide whom to investigate, arrest, prosecutor, or convict of inchoate offenses.
Many commentators have linked the preventive regime described above, in which both inchoate offenses and constitutional criminal procedure give enforcers the authority to intervene when they suspect that a person poses a threat of future harm, to patterns of racial disparity in American criminal law. Racial identity may influence official decisions about who is dangerous enough to warrant intervention. As noted earlier in this chapter, Professor Luis Chiesa has argued that the Model Penal Code’s expansion of inchoate offenses has contributed to the “racialization” of American criminal law. Luis Chiesa, The Model Penal Code, Mass Incarceration, and the Racialization of American Criminal Law, 25 Geo. Mason L. Rev. 605, 609 (2018). As an illustration of the MPC’s expansion, think again of John Terry: the MPC “substantial step” approach to attempt would have empowered police to arrest John Terry for attempted robbery, even though Ohio’s common law definition of attempt did not permit such an arrest. Robert L. Misner, The New Attempt Laws: Unsuspected Threat to the Fourth Amendment, 33 Stan. L. Rev. 201, 216 (1981). Possession offenses are another important component of this preventive regime, leading Professor Markus Dirk Dubber to characterize possession as “the new vagrancy.”
[P]ossession offenses do the crime war’s dirty work. Possession has replaced vagrancy has the most convenient gateway into the criminal justice system. Possession shares the central advantages of vagrancy as policing tool: flexibility and convenience. Yet … it is in the end a far more formidable weapon in the war on crime: it expands the scope of policing into the home, it results in far harsher penalties and therefore has a far greater incapacitative potention, and it is far less vulnerable to legal challenges.
Markus Dirk Dubber, Policing Possession: The War on Crime and the End of Criminal Law, 91 J. Criminal Law & Criminology 829, 856 (2001). Chapter Three discussed the use of vagrancy statutes after the Civil War to enforce the continued subordination of Black Americans and, in some instances, compel them to supply the free labor that Southern states had lost when slavery was abolished. Although criminal convictions are not used to supply labor in the same way today, they are still a device of social and political subordination.
1. [Fn. 5 by the court:] [Commentary] to the Model Penal Code catalogues a number of formulations which have been adopted or suggested, including the following: (a) The physical proximity doctrine- the overt act required for an attempt must be proximate to the completed crime, or directly tending toward the completion of the crime, or must amount to the commencement of the consummation. (b) The dangerous proximity doctrine- a test given impetus by Mr. Justice Holmes whereby the greater the gravity and probability of the offense, and the nearer the act to the crime, the stronger is the case for calling the act an attempt. (c) The indispensable element test- a variation of the proximity tests which emphasizes any indispensable aspect of the criminal endeavor over which the actor has not yet acquired control. (d) The probable desistance test- the conduct constitutes an attempt if, in the ordinary and natural course of events, without interruption from an outside source, it will result in the crime intended. (e) The abnormal step approach- an attempt is a step toward crime which goes beyond the point where the normal citizen would think better of his conduct and desist. (f) The res ipsa loquitur or unequivocality test- an attempt is committed when the actor’s conduct manifests an intent to commit a crime.
2. [Fn. 6 by the court:] Our definition is generally consistent with and our language is in fact close to the definitions proposed by the National Commission on Reform of Federal Criminal Laws and the American Law Institute’s Model Penal Code….
3. [Fn. 3 by the court:] This is precisely how the dissenters proceed here. They compare the crime of attempt with the crime of conspiracy and they convert the final solicitation itself into an “act.” An attempt to commit a crime is a distinct offense. Defendant was not charged with conspiracy. And a solicitation is still a solicitation even when it comes in the form of a final command for another to proceed. In the end, neither defendant nor McCabe took any “act” toward the perpetration of a crime.
4. [Fn. 11 by the dissent:] Contrary to the Court’s suggestion at n3, supra, the foregoing analysis is not premised upon concepts of conspiracy jurisprudence. However, having said that, it is interesting to note that the purpose of distinguishing between preparations and attempts is the same as the purpose of requiring an overt act in a conspiracy case. “The purpose of the overt act is to afford a locus poenitentiae, when either or all the conspirators may abandon the unlawful purpose.” | textbooks/biz/Criminal_Law/Criminal_Law%3A_An_Integrated_Approach_(Ristroph)/1.08%3A_Inchoate_Offenses.txt |
Introduction
In many respects, criminal law is individualistic: it focuses on one defendant at a time, and it purports to assign responsibility for illegal conduct on the basis of the individual defendant’s own thoughts and actions. In some contrast to that individualistic perspective, this chapter examines important doctrines that assign criminal liability on the basis of an individual’s interactions with other persons. The doctrines of group criminality discussed here, accomplice liability and conspiracy, impose criminal liability on a person who participates in or encourages another person’s criminal activity in some way. Like the inchoate offenses discussed in the last chapter, these doctrines of group criminality may be seen as expansions of criminal liability, since they will often allow a defendant to be convicted and punished even in the absence of proof that the defendant himself or herself has in fact committed the conduct specified in the underlying statute.
Doctrines of complicity and conspiracy share another feature with the law of inchoate offenses discussed in the previous chapter: this area of law contains many abstractions and is often quite confusing to newcomers. For that reason, it may be useful to begin with a concrete example. Suppose Huey knows that Louie is preparing to rob a bank, and Huey offers Louie a gun. Louie takes the gun, robs the bank, and is convicted of robbery, defined as taking the property of another by force. Huey could be charged with robbery also, even though Huey did not himself enter the bank, take any property, or use any force. Louie would be “the principal” in traditional terminology, and Huey would be charged as an “accomplice,” sometimes also described as an aider and abettor. But notice: Huey would be charged with robbery as an accomplice; he is not charged with a separate offense called “complicity.” Huey-the-accomplice can be found guilty of the same offense (here, robbery) and subject to the same range of punishments as Louie-the principal. That’s one of the most important features of accomplice liability as it is usually defined: the accomplice can be convicted of the same offense, and punishable to the same degree, as the principal. Accomplice liability is derivative liability rather than direct liability, in that accomplice liability is derived from someone else’s actions.
Now assume that the prosecution can show that Huey and Louie agreed ahead of time to commit the bank robbery together (even if the plan was that only Louie would actually enter the bank and take money). Most jurisdictions treat that prior agreement as itself an independent crime: a conspiracy to commit robbery. In most jurisdictions, Huey and Louie could each be charged and convicted of two separate offenses: conspiracy to commit robbery, and robbery itself. In other jurisdictions, Huey and Louie could be convicted of either robbery or conspiracy to commit robbery. But whether or not a conspiracy charge “merges” with the completed offense, conspiracy exists in criminal codes as a separate offense. Accomplice liability, in contrast, is simply a way for the prosecution to establish that a defendant is guilty of some other offense (robbery, in the example above) even when the defendant did not commit all relevant elements himself.
Although conspiracy is a separate offense, it is an inchoate offense like attempt or solicitation. Like those offenses, a conspiracy charge should specify the underlying crime that was the aim of the conspiracy. Recall that a defendant is never convicted of attempt, period; instead, a defendant is convicted of attempt to commit murder, attempted distribution of narcotics, attempted robbery, and so on. Similarly, a defendant is not convicted of conspiracy, period; instead, the conviction will be for conspiracy to commit murder, conspiracy to distribute narcotics, conspiracy to commit robbery, and so forth.
The basic description offered thus far distinguishes between conspiracy as an independent (but inchoate) offense and complicity (or accomplice liability) as a theory of derivative liability. Unfortunately, it gets even more complicated: some jurisdictions have developed an additional theory of derivative liability based on participation in a conspiracy. Consider Huey and Louie one more time. Suppose they have formed a conspiracy to rob a bank, with the plan that Louie will enter the bank alone, take property by force, and leave as quickly as possible. And suppose that while inside the bank, Louie commits some other offense, such as the destruction of property. Under a doctrine of derivative liability known as Pinkerton liability, after Pinkerton v. United States (1946), some jurisdictions will allow Huey to be convicted of the crime of destruction of property, even if that crime was not part of the specific plan that Huey and Louie made together. This area of law is complex, but the cases and notes in this chapter will illustrate the key concepts.
Like the inchoate offenses discussed in the last chapter, doctrines of complicity and conspiracy originated in common law courts, but both are usually codified in statutes today. As we will see, however, these statutes often fail to offer precise definitions of the concepts of complicity or conspiracy, so courts often turn to common law principles, or the Model Penal Code, for more guidance. The Model Penal Code expanded common law principles of complicity and conspiracy in some respects, with the explicit aim of making convictions easier to obtain. Those expansions may help explain the increased scale of convictions and imprisonment in the United States. Although it is difficult to gather data, it appears that convictions on theories of accomplice liability and convictions for conspiracy have both increased substantially over the past 50 to 60 years. Conspiracy charges are particularly important in the context of drug crimes, as discussed at the end of this chapter.
Complicity
18 U.S.C. § 2
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
18 U.S.C. § 924(c)(1)(a)
Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime–
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
Justus C. ROSEMOND, Petitioner
v.
UNITED STATES
Supreme Court of the United States
572 U.S. 65
Decided March 5, 2014
Justice KAGAN delivered the opinion of the Court.
This case arises from a drug deal gone bad. Vashti Perez arranged to sell a pound of marijuana to Ricardo Gonzales and Coby Painter. She drove to a local park to make the exchange, accompanied by two confederates, Ronald Joseph and petitioner Justus Rosemond. One of those men apparently took the front passenger seat and the other sat in the back, but witnesses dispute who was where. At the designated meeting place, Gonzales climbed into the car’s backseat while Painter waited outside. The backseat passenger allowed Gonzales to inspect the marijuana. But rather than handing over money, Gonzales punched that man in the face and fled with the drugs. As Gonzales and Painter ran away, one of the male passengers—but again, which one is contested—exited the car and fired several shots from a semiautomatic handgun. The shooter then re-entered the vehicle, and all three would-be drug dealers gave chase after the buyers-turned-robbers. But before the three could catch their quarry, a police officer, responding to a dispatcher’s alert, pulled their car over. This federal prosecution of Rosemond followed. [The Government agreed not to bring charges against the other four participants in the narcotics deal in exchange for their giving truthful testimony against Rosemond.]
The Government charged Rosemond with, inter alia, violating § 924(c) by using a gun in connection with a drug trafficking crime, or aiding and abetting that offense under [18 U.S.C. § 2]. Section 924(c) provides that “any person who, during and in relation to any crime of violence or drug trafficking crime[,] … uses or carries a firearm,” shall receive a five-year mandatory-minimum sentence, with seven- and ten-year minimums applicable, respectively, if the firearm is also brandished or discharged. 18 U.S.C. § 924(c)(1)(A). Section 2, for its part, is the federal aiding and abetting statute: It provides that “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal.”
Consistent with the indictment, the Government prosecuted the § 924(c) charge on two alternative theories. The Government’s primary contention was that Rosemond himself used the firearm during the aborted drug transaction. But recognizing that the identity of the shooter was disputed, the Government also offered a back-up argument: Even if it was Joseph who fired the gun as the drug deal fell apart, Rosemond aided and abetted the § 924(c) violation.
The District Judge accordingly instructed the jury on aiding and abetting law. He first explained, in a way challenged by neither party, the rudiments of § 2. Under that statute, the judge stated, “[a] person who aids or abets another to commit an offense is just as guilty of that offense as if he committed it himself.” And in order to aid or abet, the defendant must “willfully and knowingly associate[ ] himself in some way with the crime, and … seek[ ] by some act to help make the crime succeed.” The judge then turned to applying those general principles to § 924 (c)—and there, he deviated from an instruction Rosemond had proposed. According to Rosemond, a defendant could be found guilty of aiding or abetting a § 924(c) violation only if he “intentionally took some action to facilitate or encourage the use of the firearm,” as opposed to the predicate drug offense. But the District Judge disagreed, instead telling the jury that it could convict if “(1) the defendant knew his cohort used a firearm in the drug trafficking crime, and (2) the defendant knowingly and actively participated in the drug trafficking crime.” In closing argument, the prosecutor contended that Rosemond easily satisfied that standard, so that even if he had not “fired the gun, he’s still guilty of the crime.” After all, the prosecutor stated, Rosemond “certainly knew [of] and actively participated in” the drug transaction. “And with regards to the other element,” the prosecutor urged, “the fact is a person cannot be present and active at a drug deal when shots are fired and not know their cohort is using a gun. You simply can’t do it.”
The jury convicted Rosemond of violating § 924(c) (as well as all other offenses charged). The verdict form was general: It did not reveal whether the jury found that Rosemond himself had used the gun or instead had aided and abetted a confederate’s use during the marijuana deal. As required by § 924(c), the trial court imposed a consecutive sentence of 120 months of imprisonment for the statute’s violation.
The Tenth Circuit affirmed… We granted certiorari….
II
The federal aiding and abetting statute, 18 U.S.C. § 2, states that a person who furthers—more specifically, who “aids, abets, counsels, commands, induces or procures”—the commission of a federal offense “is punishable as a principal.” That provision derives from (though simplifies) common-law standards for accomplice liability. And in so doing, § 2 reflects a centuries-old view of culpability: that a person may be responsible for a crime he has not personally carried out if he helps another to complete its commission. See J. Hawley & M. McGregor, Criminal Law 81 (1899).
We have previously held that under § 2 “those who provide knowing aid to persons committing federal crimes, with the intent to facilitate the crime, are themselves committing a crime.” Both parties here embrace that formulation, and agree as well that it has two components. As at common law, a person is liable under § 2 for aiding and abetting a crime if (and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with the intent of facilitating the offense’s commission.
The questions that the parties dispute … concern how those two requirements—affirmative act and intent—apply in a prosecution for aiding and abetting a § 924(c) offense. Those questions arise from the compound nature of that provision. Recall that § 924(c) forbids “us[ing] or carr[ying] a firearm” when engaged in a “crime of violence or drug trafficking crime.” The prosecutor must show the use or carriage of a gun; so too he must prove the commission of a predicate (violent or drug trafficking) offense. For purposes of ascertaining aiding and abetting liability, we therefore must consider: When does a person act to further this double-barreled crime? And when does he intend to facilitate its commission? We address each issue in turn.
A
Consider first Rosemond’s account of his conduct (divorced from any issues of intent). Rosemond actively participated in a drug transaction, accompanying two others to a site where money was to be exchanged for a pound of marijuana. But as he tells it, he took no action with respect to any firearm. He did not buy or borrow a gun to facilitate the narcotics deal; he did not carry a gun to the scene; he did not use a gun during the subsequent events constituting this criminal misadventure. His acts thus advanced one part (the drug part) of a two-part incident—or to speak a bit more technically, one element (the drug element) of a two-element crime. Is that enough to satisfy the conduct requirement of this aiding and abetting charge, or must Rosemond, as he claims, have taken some act to assist the commission of the other (firearm) component of § 924(c)?
The common law imposed aiding and abetting liability on a person (possessing the requisite intent) who facilitated any part—even though not every part—of a criminal venture…. And so “[w]here several acts constitute[d] together one crime, if each [was] separately performed by a different individual[,] … all [were] principals as to the whole.” Indeed … a person’s involvement in the crime could be not merely partial but minimal too: “The quantity [of assistance was] immaterial,” so long as the accomplice did “something” to aid the crime. After all, the common law maintained, every little bit helps—and a contribution to some part of a crime aids the whole.
That principle continues to govern aiding and abetting law under § 2: As almost every court of appeals has held, “[a] defendant can be convicted as an aider and abettor without proof that he participated in each and every element of the offense.” United States v. Sigalow (2nd Cir. 1987). In proscribing aiding and abetting, Congress used language that “comprehends all assistance rendered by words, acts, encouragement, support, or presence”—even if that aid relates to only one (or some) of a crime’s phases or elements. So, for example, in upholding convictions for abetting a tax evasion scheme, this Court found “irrelevant” the defendants’ “non-participation” in filing a false return; we thought they had amply facilitated the illegal scheme by helping a confederate conceal his assets. United States v. Johnson (1943). “[A]ll who shared in [the overall crime’s] execution,” we explained, “have equal responsibility before the law, whatever may have been [their] different roles.” And similarly, we approved a conviction for abetting mail fraud even though the defendant had played no part in mailing the fraudulent documents; it was enough to satisfy the law’s conduct requirement that he had in other ways aided the deception. The division of labor between two (or more) confederates thus has no significance: A strategy of “you take that element, I’ll take this one” would free neither party from liability.
Under that established approach, Rosemond’s participation in the drug deal here satisfies the affirmative-act requirement for aiding and abetting a § 924(c) violation. As we have previously described, the commission of a drug trafficking (or violent) crime is—no less than the use of a firearm—an “essential conduct element of the § 924(c) offense.” In enacting the statute, “Congress proscribed both the use of the firearm and the commission of acts that constitute” a drug trafficking crime. Rosemond therefore could assist in § 924(c)’s violation by facilitating either the drug transaction or the firearm use (or of course both). In helping to bring about one part of the offense (whether trafficking drugs or using a gun), he necessarily helped to complete the whole. And that ends the analysis as to his conduct….
…[But,] as we will describe, an aiding and abetting conviction requires not just an act facilitating one or another element, but also a state of mind extending to the entire crime. And under that rule, a defendant may be convicted of abetting a § 924(c) violation only if his intent reaches beyond a simple drug sale, to an armed one. Aiding and abetting law’s intent component—to which we now turn—thus preserves the distinction between assisting the predicate drug trafficking crime and assisting the broader § 924(c) offense.
B
… As previously explained, a person aids and abets a crime when (in addition to taking the requisite act) he intends to facilitate that offense’s commission. An intent to advance some different or lesser offense is not, or at least not usually, sufficient: Instead, the intent must go to the specific and entire crime charged—so here, to the full scope (predicate crime plus gun use) of § 924(c). [1] And the canonical formulation of that needed state of mind—later appropriated by this Court and oft-quoted in both parties’ briefs—is Judge Learned Hand’s: To aid and abet a crime, a defendant must not just “in some sort associate himself with the venture,” but also “participate in it as in something that he wishes to bring about” and “seek by his action to make it succeed.” Nye & Nissen v. United States (1949) (quoting United States v. Peoni (2nd Cir. 1938).
We have previously found that intent requirement satisfied when a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense. … [S]everal Courts of Appeals have similarly held—addressing a fact pattern much like this one—that the unarmed driver of a getaway car had the requisite intent to aid and abet armed bank robbery if he “knew” that his confederates would use weapons in carrying out the crime. So for purposes of aiding and abetting law, a person who actively participates in a criminal scheme knowing its extent and character intends that scheme’s commission. [2]
The same principle holds here: An active participant in a drug transaction has the intent needed to aid and abet a § 924(c) violation when he knows that one of his confederates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope—that the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen … to align himself with the illegal scheme in its entirety—including its use of a firearm…. He thus becomes responsible, in the typical way of aiders and abettors, for the conduct of others. He may not have brought the gun to the drug deal himself, but because he took part in that deal knowing a confederate would do so, he intended the commission of a § 924(c) offense—i.e., an armed drug sale.
For all that to be true, though, the § 924(c) defendant’s knowledge of a firearm must be advance knowledge—or otherwise said, knowledge that enables him to make the relevant legal (and indeed, moral) choice. When an accomplice knows beforehand of a confederate’s design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense. But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun. As even the Government concedes, an unarmed accomplice cannot aid and abet a § 924(c) violation unless he has “foreknowledge that his confederate will commit the offense with a firearm.” Brief for United States 38. For the reasons just given, we think that means knowledge at a time the accomplice can do something with it—most notably, opt to walk away.[3]
…A final, metaphorical way of making the point: By virtue of § 924(c), using a firearm at a drug deal ups the ante. A would-be accomplice might decide to play at those perilous stakes. Or he might grasp that the better course is to fold his hand. What he should not expect is the capacity to hedge his bets, joining in a dangerous criminal scheme but evading its penalties by leaving use of the gun to someone else. Aiding and abetting law prevents that outcome, so long as the player knew the heightened stakes when he decided to stay in the game.
The Government, for its part, thinks we take too strict a view of when a defendant charged with abetting a § 924(c) violation must acquire that knowledge. As noted above, the Government recognizes that the accused accomplice must have “foreknowledge” of a gun’s presence. But the Government views that standard as met whenever the accomplice, having learned of the firearm, continues any act of assisting the drug transaction. According to the Government, the jury should convict such a defendant even if he became aware of the gun only after he realistically could have opted out of the crime.
But that approach, we think, would diminish too far the requirement that a defendant in a § 924(c) prosecution must intend to further an armed drug deal. Assume, for example, that an accomplice agrees to participate in a drug sale on the express condition that no one brings a gun to the place of exchange. But just as the parties are making the trade, the accomplice notices that one of his confederates has a (poorly) concealed firearm in his jacket. The Government would convict the accomplice of aiding and abetting a § 924(c) offense if he assists in completing the deal without incident, rather than running away or otherwise aborting the sale. But behaving as the Government suggests might increase the risk of gun violence—to the accomplice himself, other participants, or bystanders; and conversely, finishing the sale might be the best or only way to avoid that danger. In such a circumstance, a jury is entitled to find that the defendant intended only a drug sale—that he never intended to facilitate, and so does not bear responsibility for, a drug deal carried out with a gun. A defendant manifests that greater intent, and incurs the greater liability of § 924(c), when he chooses to participate in a drug transaction knowing it will involve a firearm; but he makes no such choice when that knowledge comes too late for him to be reasonably able to act upon it.[4]
III
Under these principles, the District Court erred in instructing the jury…. As we have explained, active participation in a drug sale is sufficient for § 924(c) liability (even if the conduct does not extend to the firearm), so long as the defendant had prior knowledge of the gun’s involvement. The problem with the [District Court’s] instruction came in its description of that knowledge requirement. In telling the jury to consider merely whether Rosemond “knew his cohort used a firearm,” the court did not direct the jury to determine when Rosemond obtained the requisite knowledge. so, for example, the jury could have convicted even if Rosemond first learned of the gun when it was fired and he took no further action to advance the crime…
… As earlier described, the prosecutor asserted in closing argument that the court’s test was easily satisfied because “a person cannot be present and active at a drug deal when shots are fired and not know their cohort is using a gun.” The prosecutor thus invited the jury to convict Rosemond even if he first learned of the gun as it was discharged, and no matter what he did afterward. Once again, then, the message to the jury was that it need not find advance knowledge—exactly what we (and for that matter the Government) have said is required.
We send this case back to the Tenth Circuit to consider the appropriate consequence, if any, of the District Court’s error…. Accordingly, we vacate the judgment below and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Justice ALITO, with whom Justice THOMAS joins, concurring in part and dissenting in part.
…I reject the Court’s conclusion that a conviction for aiding and abetting a violation of 18 U.S.C. § 924(c) demands proof that the alleged aider and abettor had what the Court terms “a realistic opportunity” to refrain from engaging in the conduct at issue. This rule represents an important and, as far as I am aware, unprecedented alteration of the law of aiding and abetting and of the law of intentionality generally.
…The Court imagines the following situation:
“[A]n accomplice agrees to participate in a drug sale on the express condition that no one brings a gun to the place of exchange. But just as the parties are making the trade, the accomplice notices that one of his confederates has a (poorly) concealed firearm in his jacket.”
If the accomplice, despite spotting the gun, continues to assist in the completion of the drug sale, has the accomplice aided and abetted the commission of a violation of § 924(c)?
The Court’s answer is “it depends.” Walking away, the Court observes, “might increase the risk of gun violence—to the accomplice himself, other participants, or bystanders; and conversely, finishing the sale might be the best or only way to avoid the danger.” Moreover—and this is where the seriously misguided step occurs—the Court says that if the risk of walking away exceeds (by some unspecified degree) the risk created by completing the sale and if the alleged aider and abettor chooses to continue for that reason, the alleged aider and abettor lacks the mens rea required for conviction.
What the Court has done is to convert what has up to now been an affirmative defense into a part of the required mens rea, and this step has very important conceptual and practical consequences. It fundamentally alters the prior understanding of mental states that form the foundation of substantive criminal law, and it places a strange and difficult burden on the prosecution.
That the Court has taken a radical step can be seen by comparing what the Court now holds with the traditional defense of necessity. That defense excuses a violation of law if “the harm which will result from compliance with the law is greater than that which will result from violation of it.” This is almost exactly the balance-of-risks calculus adopted by the Court, but under the traditional approach necessity is an affirmative defense. Necessity and the closely related defense of duress are affirmative defenses because they almost invariably do not negate the mens rea necessary to incur criminal liability.
This Court has made clear that, except in narrow circumstances, necessity and duress do not negate the mens rea required for conviction….
The Court confuses two fundamentally distinct concepts: intent and motive. It seems to assume that, if a defendant’s motive in aiding a criminal venture is to avoid some greater evil, he does not have the intent that the venture succeed. But the intent to undertake some act is of course perfectly consistent with the motive of avoiding adverse consequences which would otherwise occur. We can all testify to this from our daily experience. People wake up, go to work, balance their checkbooks, shop for groceries—and yes, commit crimes—because they believe something bad will happen if they do not do these things, not because the deepest desire of their heart is to do them. A person may only go to work in the morning to keep his or her family from destitution; that does not mean he or she does not intend to put in a full days work. In the same way, the fact that a defendant carries out a crime because he feels he must do so on pain of terrible consequences does not mean he does not intend to carry out the crime. When Jean Valjean stole a loaf of bread to feed his starving family, he certainly intended to commit theft; the fact that, had he been living in America today, he may have pleaded necessity as a defense does not change that fact. See V. Hugo, Les Misérables 54 (Fall River Press ed. 2012).
… Unsurprisingly, our cases have recognized that a lawful motive (such as necessity, duress, or self-defense) is consistent with the mens rea necessary to satisfy a requirement of intent…. Thus, it seems inarguable to me that the existence of the purpose or intent to carry out a crime is perfectly compatible with facts giving rise to a necessity or duress defense. Once that proposition is established, the Court’s error is readily apparent. The Court requires the Government to prove that a defendant in Rosemond’s situation could have walked away without risking harm greater than he would cause by continuing with the crime—circumstances that traditionally would support a necessity or duress defense. It imposes this requirement on the Government despite the fact that such dangerous circumstances simply do not bear on whether the defendant intends the § 924(c) offense to succeed, as (on the Court’s reading) is required for aiding and abetting liability.
The usual rule that a defendant bears the burden of proving affirmative defenses is justified by a compelling, commonsense intuition: “[W]here the facts with regard to an issue lie peculiarly in the knowledge of a party, that party is best situated to bear the burden of proof.” Smith v. United States (2013). By abandoning that rule in cases involving aiding and abetting of § 924(c) offenses, the Court creates a perverse arrangement whereby the prosecution must prove something that is peculiarly within the knowledge of the defendant. Imagine that A aids B in committing a § 924(c) offense and claims that he only learned of the gun once the crime had begun. If A had the burden of proof, he might testify that B was a hothead who had previously shot others who had crossed him. But under the Court’s rule, the prosecution, in order to show the intent needed to convict A as an aider and abettor, presumably has the burden of proving that B was not such a person and that A did not believe him to be. How is the prosecution to do this? By offering testimony by B’s friends and associates regarding his peaceful and easygoing nature? By introducing entries from A’s diary in which he reflects on the sense of safety he feels when carrying out criminal enterprises in B’s company? Furthermore, even if B were a hothead and A knew him to be such, A would presumably only be entitled to escape liability if he continued with the offense because of his fear of B’s reaction if he walked away. Under the Court’s rule, it is up to the Government to prove that A’s continued participation was not on account of his fear of B—but how? By introducing footage of a convenient security camera demonstrating that A’s eyes were not wide with fear, nor his breathing rapid?
The Court’s rule breaks with the common-law tradition and our case law. It also makes no sense. I respectfully dissent from that portion of the Court’s opinion which places on the Government the burden of proving that the alleged aider and abettor of a § 924(c) offense had what the Court terms “a realistic opportunity” to refrain from engaging in the conduct at issue.
Notes and questions on Rosemond
1. As you have seen throughout this course, crimes are often defined in terms of a combination of mental state elements and conduct elements. Accomplice liability is not itself an independent crime, but a theory of liability. However, courts sometimes speak of “the elements” of accomplice liability as a way of delineating the things the prosecution must show in order to obtain a conviction on an accomplice liability theory. And the “element” of accomplice liability are often separated into intent and conduct, like the definitions to many crimes. What is the mental state that must be shown in order to prove that Rosemond is an accomplice to § 924(c)? What conduct, if any, must Rosemond have engaged in to be guilty of § 924(c) as an accomplice?
2. When one person is charged as an accomplice, the person who actually carries out the conduct elements of the underlying criminal offense is often described as “the principal.” For one person to be an accomplice, another person must be the principal – that is, someone must actually carry out the offense. In Rosemond, the prosecution apparently believed that Justus Rosemond was in fact the principal for the § 924(c) offense. The government’s first line of argument was that Rosemond did, in fact, fire the gun after the drug sale went awry. And the prosecution agreed not to prosecute the other participants in the planned sale in exchange for their testimony against Rosemond. Why, then, did the prosecution make an argument based on accomplice liability? Why not charge Rosemond as a principal and leave it at that?
3. Judge Learned Hand’s 1938 opinion in United States v. Peoni is often quoted by courts seeking to explain the requirements of accomplice liability. In Peoni, Judge Hand emphasized that complicity required purpose to promote the principal’s criminal conduct. The facts of Peoni are simple enough: Joseph Peoni sold counterfeit bills to a man named Regno; Regno later sold those bills to a man named Dorsey. After Dorsey was eventually arrested for possession of the counterfeit bills, the government sought to prosecute Peoni as an accomplice to Dorsey’s possession of counterfeit bills. After a review of several accounts of accomplice liability, Judge Hand emphasized that the accounts “have nothing whatever to do with the probability that the forbidden result would follow upon the accessory’s conduct; and that they all demand that he in some sort associate himself with the venture, that he participate in it as in something he wishes to bring about, that he seek by his action to make it succeed. All the words used—even the most colorless ‘abet’—carry an implication of purposive attitude toward it.” Peoni, 100 F.2d at 402. Judge Hand concluded that Peoni could not be convicted as an accomplice to Dorsey, since there was no evidence that Peoni specifically wanted Dorsey to possess the bills (or even knew of Dorsey’s existence).
4. Consider again the question raised in the first note above: what are the “elements” of accomplice liability? The Peoni opinion is often quoted as a formulation of the mental state required for accomplice liability – intent to promote or facilitate the commission of the offense. But Peoni can also help us think about other ingredients of complicity, including the “actus reus” of accomplice liability, or the conduct required to be an accomplice. Judge Hand’s language does suggest that some action is required; the accomplice must “participate” in the crime and “seek by his action to make it succeed” (emphasis added). Similarly, Rosemond says the accomplice must take “an affirmative act in furtherance of [the] offense.” The question has often arisen whether causation is an element of complicity: must the alleged accomplice’s actions have any identifiable effect on the principal’s crime? (Look again at the federal complicity statute reprinted before Rosemond. Subsection (b) mentions causation directly; subsection (a) does not.) In Peoni, Judge Hand thought it obvious that Joseph Peoni’s initial sale of counterfeit bills was “a step in the causal chain” that culminated in Dorsey’s offense. But according to Hand, this causal contribution was not itself sufficient to make Peoni an accomplice, given the absence of proof that Peoni intended to promote Dorsey’s crime. Indeed, Hand suggested that causation may simply be irrelevant: he reported that classic accounts of complicity have “nothing whatever to do with the probability that the forbidden result would follow upon the accessory’s conduct.” In general, courts require some evidence of “aid” to the principal, but they do not usually require proof that the accomplice’s aid actually had an effect on the principal’s conduct. For an overview and critique of complicity doctrine’s indifference to causation, see Joshua Dressler, Reforming Complicity Law: Trivial Assistance as a Lesser Offense, 5 Ohio St. J. Crim. L. 427 (2008).
5. The Rosemond Court quotes Judge Hand’s Peoni opinion approvingly, calling it “canonical,” but does Rosemond actually adopt Hand’s view of accomplice liability? Hand suggested that accomplice liability required “purposive attitude.” But the Supreme Court says that the intent requirement is “satisfied when a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense.” Is this difference between purpose (or intent) to promote the underlying crime and mere knowledge that it is taking place a meaningful difference that will change outcomes? Some jurisdictions do emphasize a difference between “knowing facilitation” of a crime, which may be codified as a separate, less severe offense, and actual accomplice liability, which requires purpose to promote the crime. See, e.g., Skinner v. Kentucky, 864 S.W.2d 290 (1993). Many other jurisdictions take the approach of the Rosemond Court and allow participation in a crime, plus knowledge that it is taking place, to suffice for accomplice liability.
6. Other states set the threshold for accomplice liability even lower, allowing convictions on the basis of complicity even in the absence of evidence that the defendant knew the crime in question was taking place. The “natural and probable consequences” doctrine, mentioned but neither endorsed nor condemned by the Rosemond Court in its footnote 7, holds that when a defendant is an accomplice to one offense, he may also be convicted as an accomplice to additional crimes if the additional crimes are “natural and probable consequences” of the crime that the defendant actually intended to promote. In one well-known case applying the doctrine, the defendant, Thomas Luparello, had recruited two men to track down his former girlfriend, Terri Cesak. Without Luparello present, the two men went to the home of Mark Martin, a friend of Terri and her husband, to ask him about Terri’s whereabouts. Instead of questioning Martin, the men shot and killed him. Luparello was convicted of first-degree murder even though there was no evidence that he had intended for Martin to be killed. The court held that the killing was a “natural and probable consequence” of a planned assault on Martin, and Luparello had intended to encourage the assault. People v. Luparello, 231 Cal. Rptr. 832 (1986). The natural and probable consequences doctrine is controversial, and the Rosemond Court purports not to take a position on it.
7. The statutory provision discussed in Rosemond, 18 U.S.C. § 924(c), is an important and frequently used federal law. It was examined at the end of Chapter Seven, but a few reminders may be helpful here. Section 924(c) is a “gun enhancement,” or a law that increases the penalties for some other offense if a gun is used in the underlying offense. The current version of § 924(c) imposes a mandatory minimum sentence of 5, 7, or 10 years depending on whether the gun is merely “used” or “carried” (5 years), “brandished” (7 years), or actually discharged (10 years). The extra years of prison imposed by § 924(c) really are extra, in that they run consecutively to whatever other sentence is imposed for the underlying drug offense. As you saw in Angelos in Chapter Seven, the prosecution can often increase a federal sentence dramatically by charging multiple counts of § 924(c). Critics of gun enhancement charges point out that they appear to be used disproportionately often against Black defendants and other defendants of color, helping to create and maintain racial disparities in the U.S. prison population. “[D]efining a crime is a political act, [and so] is the decision about whether, how, and against whom to charge a crime, and as a practical matter, it is likely a more significant one. And the racially disparate federal charging decisions in gun cases … have been pursued by Attorneys General and U.S. Attorneys from both ends of the political spectrum.” David E. Patton, Criminal Justice Reform and Guns: The Irresistible Movement Meets the Immovable Object, 69 Emory L.J. 1011, 1025 (2020).
8. Most jurisdictions define complicity in general terms that apply across all different types of offenses. In other words, complicity principles are trans-substantive, like the attempt and solicitation doctrines examined in the previous chapter. But consider whether some offenses are less appropriately punished through accomplice liability than others. The fact that § 924(c) mandates different sentencing depending on whether a gun is “used,” “brandished,” or “discharged” suggests that Congress wanted to allocate punishment based on the specific way the defendant used the gun. Once we allow accomplice liability for § 924(c), aren’t Congress’s allocations disrupted? If courts do recognize accomplice liability for § 924(c), should they be more demanding about the required mental state? Given that the § 924(c) charges in this case alleged not simply the use or brandishment but the discharge of the gun, should the Rosemond Court have required knowledge that a gun would be discharged, not merely knowledge that one participant would carry a gun?
9. Justice Alito’s dissent relies on two distinctions that you should understand: a distinction between an affirmative defense and a failure-of-proof argument, and a distinction between intent and motive. A failure of proof argument is a defense claim that the prosecution has not established the necessary elements of the offense beyond a reasonable doubt. Affirmative defenses, which you will study in more detail in the next chapter, do not contest the elements of the offense, but rather identify some independent consideration as a reason not to convict the defendant. If a defendant participates in an armed drug transaction out of fear for his own safety, he could potentially benefit from the affirmative defenses of duress or necessity. But, Justice Alito would argue, such a person can still be an accomplice to a drug trafficking crime. Another way that Justice Alito might put the point: accomplice liability requires intent to promote the principal’s criminal conduct, or at least knowledge that the conduct will occur; it does not ask us to inquire why the defendant intends the conduct to occur.
Check Your Understanding (9-1)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
N.Y. Penal Law § 125.25. Murder in the second degree
A person is guilty of murder in the second degree when:
1. With intent to cause the death of another person, he causes the death of such person or of a third person…
2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person…
N.Y. Penal Law § 20.00. Criminal liability for the conduct of another
When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.
The PEOPLE of the State of New York, Respondent
v.
Jermaine RUSSELL, Appellant
The PEOPLE of the State of New York, Respondent
v.
Khary BEKKA, Appellant
The PEOPLE of the State of New York, Respondent
v.
Shamel BURROUGHS, Appellant
Court of Appeals of New York
91 N.Y.2d 280
Feb. 11, 1998
KAYE, Chief Judge.
Shortly before noon on December 17, 1992, Shamel Burroughs engaged in a gun battle with Jermaine Russell and Khary Bekka on Centre Mall of the Red Hook Housing Project in Brooklyn. During the course of the battle, Patrick Daly, a public school principal looking for a child who had left school, was fatally wounded by a single stray nine millimeter bullet that struck him in the chest. Burroughs, Bekka and Russell—defendants on this appeal—were all charged with second degree murder.
Two separate juries, one for Burroughs and another for Russell and Bekka, were impaneled contemporaneously and heard the evidence presented at trial. Although ballistics tests were inconclusive in determining which defendant actually fired the bullet that killed Daly, the theory of the prosecution was that each of them acted with the mental culpability required for commission of the crime, and that each “intentionally aided” the defendant who fired the fatal shot (Penal Law § 20.00). Both juries convicted defendants of second degree, depraved indifference murder (Penal Law § 125.25[2]).
On appeal, each defendant challenges the sufficiency of the evidence. Because the evidence, viewed in the light most favorable to the prosecution, could have led a rational trier of fact to find, beyond a reasonable doubt, that each defendant was guilty of depraved indifference murder as charged, we affirm the order of the Appellate Division sustaining all three convictions.
A depraved indifference murder conviction requires proof that defendant, under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct creating a grave risk of death to another person, and thereby caused the death of another person. Reckless conduct requires awareness and conscious disregard of a substantial and unjustifiable risk that such result will occur or that such circumstance exists. “The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” To constitute “depraved indifference,” conduct must be “so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another.”
Although defendants underscore that only one bullet killed Patrick Daly and it is uncertain which of them fired that bullet, the prosecution was not required to prove which defendant fired the fatal shot when the evidence was sufficient to establish that each defendant acted with the mental culpability required for the commission of depraved indifference murder, and each defendant “intentionally aided” the defendant who fired the fatal shot. Defendants urge, however, that the evidence adduced at trial did not support a finding that they—as adversaries in a deadly gun battle—shared the “community of purpose” necessary for accomplice liability. We disagree. The fact that defendants set out to injure or kill one another does not rationally preclude a finding that they intentionally aided each other to engage in the mutual combat that caused Daly’s death.
People v. Abbott (N.Y. 1981), provides an apt illustration. That case involved two defendants—Abbott and Moon—who were engaged in a “drag race” on a residential street when Abbott lost control and smashed into another automobile, killing the driver and two passengers. Both defendants were convicted of criminally negligent homicide, but Moon asserted that he was not responsible for Abbott’s actions and that his conviction should be set aside. Rejecting this argument, the court found that, although Moon did not strike the victim’s car and was Abbott’s adversary in a competitive race, he intentionally participated with Abbott in an inherently dangerous and unlawful activity and therefore shared Abbott’s culpability. Moon’s “conduct made the race possible” in the first place, as there would not have been a race had Moon not “accepted Abbott’s challenge” …
In the present case, the jurors were instructed:
“If you find that the People have proven beyond a reasonable doubt that [defendants] took up each other’s challenge, shared in the venture and unjustifiably, voluntarily and jointly created a zone of danger, then each is responsible for his own acts and the acts of the others * * * [and] it makes no difference whether it was a bullet from Mr. Bekka’s gun, Mr. Russell’s gun or Mr. Burrough’s gun that penetrated Mr. Daly and caused his death” (emphasis added).
The trial evidence was sufficient to support each jury’s findings in accordance with this charge. Although Burroughs was shooting at Russell and Bekka, and Russell and Bekka were shooting at Burroughs, there was adequate proof to justify the finding that the three defendants tacitly agreed to engage in the gun battle that placed the life of any innocent bystander at grave risk and ultimately killed Daly. Indeed, unlike an unanticipated ambush or spontaneous attack that might have taken defendants by surprise, the gunfight in this case only began after defendants acknowledged and accepted each others’ challenge to engage in a deadly battle on a public concourse.
As defendants approached one another on Centre Mall, a grassy open area that serves as a thoroughfare for the 7,000 residents of the 28-building housing complex, it was evident that an encounter between them would be violent and would endanger others. There was trial evidence that when Burroughs first saw Bekka and Russell walking toward him, he immediately recognized the danger, instructing the two female friends accompanying him, one of them pregnant, to “run” or “go.” They too plainly sensed the danger because, without hesitation, they turned and ran.
Despite the palpable threat, Burroughs, armed with a nine millimeter Glock, did not flee with his friends. Rather, he continued toward Russell and Bekka, tacitly accepting their invitation and issuing one of his own. In turn, Russell and Bekka, also armed with automatic weapons, continued walking toward Burroughs, challenging him and accepting his challenge. As they drew nearer, defendants each began firing their high-powered guns, capable of shooting bullets at an average rate of 1,100 feet per second, across the pedestrian thoroughfare. The dozen or more people in the area, as well as those with windows overlooking the Mall, were put at grave risk as defendants unleashed a hail of bullets. Witnesses testified that the battle sounded “like a war” and that anywhere from nine to 20 shots were fired.
Although Centre Mall is surrounded by buildings affording refuge, defendants chose instead to run through the area aggressively pursuing one another. Indeed, even after exchanging an initial volley of shots, they continued to wage their private war, issuing taunts and ducking back and forth behind buildings and trees, seeking tactical advantage. As a result of defendants’ deadly gun battle, Patrick Daly was shot in the chest and killed almost instantly.
At trial, all three defendants sought to exonerate themselves by arguing self-defense—each claiming that their opponent shot first and they were justified in firing back. Under New York law, however, a person who reasonably believes that another is about to use deadly physical force is not free to reciprocate with “deadly physical force if he knows that he can with complete safety as to himself and others avoid the necessity of so doing by retreating”… Here, there was evidence that defendants did not avail themselves of opportunities for safe retreat, choosing instead to use deadly force against each other. As such, there was adequate support for each jury’s rejection of defendants’ justification defense.
The evidence adduced at trial was also sufficient for the jury to determine that all three defendants acted with the mental culpability required for depraved indifference murder, and that they intentionally aided and encouraged each other to create the lethal crossfire that caused the death of Patrick Daly.
To the extent defendants’ remaining arguments are preserved, we conclude that they are without merit.
Accordingly, in each case the order of the Appellate Division should be affirmed.
Notes and questions on People v. Russell
1. No one argued that any of three defendants intended to kill Patrick Daly. That wouldn’t matter for a second-degree murder charge under New York law, since a person can be guilty of second-degree murder by engaging in reckless conduct that causes death. But does the lack of intent to kill this victim matter to an accomplice liability argument? Why or why not?
2. In this case, accomplice liability is used to address an evidentiary difficulty related to causation: the prosecution could not prove that any specific one of the three defendants caused Patrick Daly’s death. For each defendant, the prosecution argued that either the defendant actually caused Daly’s death (by firing the fatal bullet) or the defendant was an accomplice to the person who caused Daly’s death. Notice that the previous case also involved the use of accomplice liability to get around a deficiency in the evidence – the prosecution there believed, but could not adequately prove, that Rosemond himself had discharged the gun. To get around this difficulty, the prosecution offered two alternative theories: either Rosemond fired the weapon himself, or he was an accomplice to the person who did fire the weapon.
3. Look again at the text of New York’s complicity statute, reprinted just before the Russell opinion. Do the New York state law requirements for complicity differ from the federal standards (themselves supposedly derived from common law) discussed in Rosemond? In particular, does accomplice liability in New York have the same mental state requirements as accomplice liability in the federal system?
4. In thinking about the previous question, you should have noticed that New York does not follow the requirement of “true purpose” to facilitate the crime that has been endorsed by federal courts. Instead, New York Penal Law 20.00 can be understood as following, and extending still further, an expansion of accomplice liability that began with the Model Penal Code. Here is key language from the Model Penal Code:
Model Penal Code § 2.06
(1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.
(2) A person is legally accountable for the conduct of another person when:
(a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct; or
(b) he is made accountable for the conduct of such other person by the Code or by the law defining the offense; or
(c) he is an accomplice of such other person in the commission of the offense.
(3) A person is an accomplice of another person in the commission of an offense if:
(a) with the purpose of promoting or facilitating the commission of the offense, he
(i) solicits such other person to commit it, or
(ii) aids or agrees or attempts to aid such other person in planning or committing it, or
(iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or
(b) his conduct is expressly declared by law to establish his complicity.
(4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.
(5) A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by the conduct of another person for which he is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his incapacity.
1. In at least some circumstances (offenses involving a result element), the Model Penal Code dispenses with the traditional common law requirement that the accomplice must intend to promote the specific crime that the principal commits. Instead, the MPC allows accomplice liability if the accomplice intends to promote the principal’s conduct and has “the kind of culpability, if any, with respect to [the] result that is sufficient for the commission of the offense” (emphasis added). To make this concrete, consider a set of facts similar to those you see in Russell: one person encourages another to shoot in a crowded area, and someone is hit by a bullet. The person who fired the gun did not intend to kill anyone, but he acted recklessly, and may be guilty of reckless homicide. Is the person who encouraged the reckless shooting also guilty of reckless homicide, as an accomplice? The MPC would allow accomplice liability in this situation, even though the accomplice did not intend to promote a homicide. The New York statute expands accomplice liability even more broadly than the Model Penal Code, since it dispenses with a “true purpose” requirement for all crimes and not merely those that involve a result element.
2. What about the conduct required of an accomplice under New York law? As we have seen in other contexts, conduct requirements and mental state requirements are closely intertwined in this statute. Penal Law § 20.00 imposes accomplice liability on one who “solicits, requests, commands, importunes, or intentionally aids” a principal to engage in criminal conduct. The prosecution in Russell argued that the defendants had “intentionally aided” one another in reckless conduct. The claim was not that any of the defendants had intended to kill the victim, Patrick Daly, but they had intended to aid one another in engaging in “mutual combat.”
3. The terms “accomplice” and “complicity” come from Latin roots that mean “folded together” or “allied.” Accomplice liability is often said to require “action in concert” or a “community of purpose.” From that perspective, People v. Russell is an unusual use of accomplice liability: Shamel Burroughs was shooting at, and presumably trying to kill, Jermaine Russell and Khary Bekka, and Russell and Bekka were shooting at Burroughs. The prosecution argued, successfully, that all three men were accomplices to one another. What is the argument for treating enemies as accomplices here? Suppose the deadly bullet had struck Russell, not an uninvolved bystander, and Russell was hurt but not killed. Suppose then Burroughs were charged with attempted murder (of Russell). Should Russell also be charged with attempting to murder himself, on the theory that he was an accomplice to Burroughs? Consider again the precise mental state and conduct requirements of the New York complicity statute.
4. Patrick Daly, the high school principal who was shot, was a beloved community figure, and the teenage defendants were his former students. Daly’s death shocked, and then galvanized, the Red Hook neighborhood in Brooklyn. For an account of the shooting and immediate aftermath, see Robert D. McFadden, Brooklyn Principal Shot to Death While Looking for Missing Pupil, N.Y. Times (Dec. 18, 1992). For details on how the incident “indelibly transformed” Red Hook and helped lead to the development of the Red Hook Community Justice Center, see Alan Neuhauser, Days After Newtown, City Also Remembers Principal Killed 20 Years Ago, dnainfo.com (Dec. 17, 2012).
5. Russell and Bekka were apparently mortal enemies of Burroughs, and vice versa. All three defendants were young Black men. Might this fact have made it easier to see the three defendants as accomplices of one another? For one defendant’s reflections on the case, and his own later work as a Quaker advocate for restorative justice, see https://www.afsc.org/blogs/acting-in...ve-khary-bekka.
6. As the court notes near the end of its opinion, the defendants tried unsuccessfully to raise claims of self-defense. We’ll discuss self-defense doctrine, and retreat requirements, in more detail in Chapter Ten, and will reconsider the facts of this case at that point.
Conspiracy
18 U.S.C. § 371. Conspiracy to commit offense or to defraud the United States
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
49 U.S.C. § 32703. Preventing tampering
A person may not–
(1) advertise for sale, sell, use, install, or have installed, a device that makes an odometer of a motor vehicle register a mileage different from the mileage the vehicle was driven, as registered by the odometer within the designed tolerance of the manufacturer of the odometer;
(2) disconnect, reset, alter, or have disconnected, reset, or altered, an odometer of a motor vehicle intending to change the mileage registered by the odometer;
(3) with intent to defraud, operate a motor vehicle on a street, road, or highway if the person knows that the odometer of the vehicle is disconnected or not operating; or
(4) conspire to violate this section…
18 U.S.C. § 1341. Frauds and swindles [Mail fraud]
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service [or any private or commercial interstate carrier], or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both.
UNITED STATES of America, Plaintiff–Appellee
v.
Michael David HUBBARD, Defendant–Appellant
UNITED STATES of America, Plaintiff–Appellee
v.
James Ray LYON, Defendant–Appellant
U.S. Court of Appeals, Ninth Circuit
96 F.3d 1223
Decided Sept. 23, 1996
TROTT, Circuit Judge:
Michael Hubbard and James Lyon were convicted of conspiracy to commit mail fraud related to an elaborate scheme of odometer tampering. They appeal the district court’s denial of their Motion for Judgment of Acquittal, arguing … that there was insufficient evidence to support a charge of conspiracy…. We reject Appellants’ arguments and affirm the convictions.
Michael Hubbard, conducting business as Discount Rent–A–Car (Discount) and as AAA Rent A Car, was in the business of purchasing and selling used motor vehicles. He purchased vehicles that had previously been rental cars, and when he purchased them they generally had between 50,000 and 80,000 miles on them. On some of the vehicles Hubbard purchased, he rolled back the odometers. Then, Hubbard applied to the Departments of Motor Vehicles in California and Texas for duplicate titles, claiming that the original titles to the purchased rental cars had been lost. The duplicate titles came back with a blank mileage figure, and the rolled-back, low-mileage figure was inserted on the duplicate title. The cars that are the subject of this case were then sold by Hubbard and his employee James Lyon to Arizona Checker Sales, which converted the used cars into taxicabs. Hubbard and Lyon represented to Arizona Checker Sales that the low-mileage figures on the odometers were accurate. Once Arizona Checker Sales had possession of the vehicles and their titles, they had to obtain new Arizona titles. The State of Arizona mailed the new titles back to Arizona Checker Sales.
In February 1995, Hubbard and Lyon were tried for conspiracy to engage in odometer tampering and mail fraud. At the conclusion of the Government’s case, Hubbard and Lyon moved for judgment of acquittal. The district court denied the motion as to the conspiracy to commit mail fraud, but granted the motion as to the charge of conspiracy to engage in odometer tampering. The court found that the evidence did not show conspiracy to spin odometers, reasoning that the odometer tampering crime was completed once the odometer was altered, and there was no evidence that Lyon had actually altered an odometer. The court, however, found that Lyon’s role in keeping records and negotiating with purchasers could support the charge of conspiracy to commit mail fraud.
After eight days of trial, a jury convicted Hubbard and Lyon on the count of conspiracy to commit mail fraud…
To prove a conspiracy, the Government must show an agreement between two or more persons to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose. “[I]nferences of the existence of such an agreement may be drawn ‘if there be concert of action, all the parties working together understandingly, with a single design for the accomplishment of a common purpose.’” United States v. Melchor–Lopez (9th Cir.1980). “The agreement need not be explicit, but may be inferred from circumstantial evidence.” Once evidence of a conspiracy is established, only a slight connection between the defendant and the conspiracy is necessary to convict the defendant of knowing participation in the conspiracy. However, mere association with members of a conspiracy or knowledge of the conspiracy, “without an intention and agreement to accomplish a specific illegal objective, is not sufficient to make one a conspirator.” Appellants do not attack the existence of fraudulent behavior. Instead, they argue that there is no evidence that Hubbard and Lyon had an agreement to act fraudulently.
We find, however, that the evidence presented at trial shows otherwise. Hubbard’s role in the fraud is supported by the fact that he was running the company, negotiating the purchase and sale of vehicles, and picking up and delivering vehicles. One witness, a former employee of Discount, testified that she specifically saw him inside of one vehicle with the dashboard panel removed, adjusting the odometer with a screw driver. Also, Hubbard signed several documents related to the purchases and sales of the vehicles. For example, he applied for the duplicate titles, claiming that the originals were lost. During the execution of a search warrant at Discount, the titles purportedly lost were found on Hubbard’s desk. Further evidence of Hubbard’s intent and knowledge of the crime came from his prior conviction in June, 1990, when he pleaded guilty to two felony counts for odometer-fraud related crimes.
Appellants argue that even if there was evidence that Hubbard defrauded purchasers, the evidence does not show that Lyon knew that the mileage he represented to buyers was not accurate. However, there is sufficient evidence supporting Lyon’s knowledge of and participation in the fraudulent scheme. Lyon spoke to purchasers of Discount’s vehicles regarding the cost and mileage of the vehicles. For example, John Holshouser, a representative from Arizona Checker Sales, testified that he had spoken to Lyon 15–20 times over the phone about the cars that were for sale. Lyon also faxed to Holshouser documents listing vehicle prices and mileage. Holshouser specifically testified that Lyon had represented to him that the mileage figures were actual mileage figures. Holshouser also testified that he relied on mileage figures in deciding on the price he would pay for the car.
Lyon handled paperwork associated with both the purchase and sale of used cars. He personally maintained an inventory of the vehicles on a computer, inputting data about the mileage of the vehicles. Reports with vehicle information containing both high and low mileage figures for five vehicles were printed from the computer data kept by Lyon. A handwriting expert testified that Lyon had written at least some of the mileage figures on vehicle documents. For example, in relation to one vehicle, the expert testified that Lyon had written both: 1) a high mileage figure of 79,530 miles on a Dealer Jacket when Discount purchased the vehicle, and 2) the low mileage figure of 51,784 miles on the duplicate Texas Certificate of Title, which Discount provided to Arizona Checker Sales and which Arizona Checker Sales provided to the Arizona Department of Transportation. Also, in a fax to Holshouser, Lyon represented that the mileage on another vehicle was 30,100 miles, whereas the Dealer Jacket for the same vehicle states in Lyon’s writing that the car has 70,550 miles.
Viewing the evidence in the light most favorable to the Government, the evidence shows that Hubbard purchased the vehicles with high mileage, rolled back the odometers, and then Hubbard and Lyon offered them for sale at a lower mileage. Lyon represented to Holshouser that the low mileage figures were accurate, and certified those low-mileage figures on title documents. Lyon input vehicle information into the company computer, and was in charge of maintaining the vehicle inventory. Hubbard and Lyon had to coordinate the new, rolled-back mileage figures to be consistent on vehicle price lists, on the duplicate titles, and on odometer disclosure statements. This scheme required their interaction and cooperation. Thus, a rational jury could have found a “concert of action, all the parties working together understandingly, with a single design for the accomplishment of a common purpose,” which is sufficient to establish evidence of an agreement.
Accordingly, we conclude that a rational jury could have found that Appellants had an agreement to engage in this fraudulent scheme, and sufficient evidence supports the convictions for conspiracy….
… Defendants [also] argue that the district court’s grant of the motion for judgment of acquittal for the charge of conspiracy to engage in odometer tampering and the denial of the motion for the charge of conspiracy to engage in mail fraud were inconsistent. In other words, they contend that they could not have conspired to commit mail fraud without conspiring to roll-back odometers.
This argument has no merit. The district court interpreted the conspiracy charge related to odometer tampering in a narrow sense, finding that the crime of odometer tampering ended as soon as the odometers were rolled-back. The court found that there was insufficient evidence to support a finding that Lyon had tampered with the odometers. This was distinct from the charge of mail fraud. As explained above, there was sufficient evidence to support a finding that Hubbard and Lyon engaged in a fraudulent scheme to sell cars with the rolled-back odometers to Arizona Checker Sales at inflated prices. Both Hubbard and Lyon performed integral parts of this scheme by signing the relevant documents, inputting the rolled-back odometer figures on new titles, and representing the low-mileage figures as actual mileage to Arizona Checker Sales.
Therefore, although there may not have been evidence that Lyon himself altered the odometers, the conspiracy charge for mail fraud included acts beyond the actual alteration of the odometer. This additional fraudulent behavior—i.e., misrepresenting mileage figures and selling vehicles to purchasers who would have to acquire new titles—provided the basis for the charge of conspiracy to commit mail fraud. Thus, there was nothing inconsistent in the district court’s partial judgment of acquittal.
Notes and questions on U.S. v. Hubbard
1. This case introduces you to a new inchoate offense: conspiracy. Like the inchoate offenses discussed in the previous chapter, attempt and solicitation, a conspiracy charge should specify the underlying offense that the alleged co-conspirators agreed to commit. (A defendant is not charged with attempt or solicitation alone, remember, but with “attempted robbery” or “solicitation to murder” and so forth.) Here, Hubbard and Lyon were charged with two different conspiracies: a conspiracy to engage in odometer tampering, and separately, a conspiracy to commit mail fraud. After the trial, the district court granted a motion for judgment of acquittal with respect to the conspiracy to commit odometer tampering fraud. What evidence was missing to support the charge of conspiracy to commit odometer tampering? It may help to ask, what are the elements of a conspiracy to commit odometer tampering? The next note can help you identify those elements.
2. The federal conspiracy statute used in this case, 18 U.S.C. § 371, is like many of the attempt statutes we saw in Chapter Eight: it uses the term “conspire,” as those statutes used the term “attempt,” without defining it. To define the term more precisely, the Ninth Circuit draws from caselaw, noting that a conspiracy charge requires the prosecution to show “an agreement between two or more persons to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose.” Are there separate mental state and conduct elements here, or does the concept of an agreement collapse mental state and action?
3. In its requirement of an agreement “between two or more persons,” the federal statute takes what is often called the bilateral view of conspiracy: a conspiracy requires at least two participants. A bilateral definition of conspiracy can create obstacles in cases in which one of the supposed conspirators is not really agreeing to the crime—perhaps because he is an undercover agent working a sting operation, for example. Some jurisdictions adopt instead a “unilateral” view of conspiracy, in which true agreement between two guilty parties is not necessary. Here’s one court’s explanation of the distinction:
Under a unilateral formulation, the crime of conspiracy is committed when a person agrees to proceed in a prohibited manner; under a bilateral formulation, the crime of conspiracy is committed when two or more persons agree to proceed in such manner. Under either approach, the agreement is all-important to conspiracy. Under the unilateral approach, as distinguished from the bilateral approach, the trier-of-fact assesses the subjective individual behavior of a defendant, rendering irrelevant in determining criminal liability the conviction, acquittal, irresponsibility, or immunity of other co-conspirators. Under the traditional bilateral approach, there must be at least two ‘guilty’ persons, two persons who have agreed.”
State v. Kihnel, 488 So.2d 1288 (La. 1986). Again, the federal statute used to prosecute Hubbard is a bilateral statute. For an example of unilateral language, see the Model Penal Code definition of conspiracy, discussed after the next case in this chapter.
1. As emphasized in the court’s excerpt above, “the agreement is all-important” to a conspiracy charge whether the jurisdiction adopts a bilateral or unilateral approach. Many courts describe the agreement as the “actus reus” of conspiracy, but is an agreement an act? Persons can formalize an agreement through conduct—the signing of a contract, for example—but conspirators rarely put anything in writing or otherwise take action to make their agreement explicit. Conspiratorial agreements are often “inferred from circumstantial evidence” rather than proven by direct evidence. Just as attempt doctrine struggles to distinguish “mere preparation” from actual “perpetration” of an attempt, conspiracy doctrine often struggles to distinguish “mere association” from an actual agreement.
2. Which pieces of evidence establish an agreement in this case? What, precisely, did Hubbard and Lyon agree to do? Or put differently, what crime did they conspire to commit? Again, the district court entered a judgment of acquittal on one conspiracy charge, but not the other. What explains the different outcomes?
3. Why punish conspiracy, Part One. In a legal system that includes liability for criminal attempts, as discussed in the previous chapter, and liability for accomplices, as discussed in the first part of this chapter, what does conspiracy doctrine add? One commonly stated justification for conspiracy offenses is the claim that group efforts to commit crimes are especially dangerous and socially harmful, so much so that the very agreement to commit a crime is worthy of punishment even in the absence of the kind of preparatory activity that may be required by attempt doctrine. For one recent statement of this view, consider People v. Martin, 26 Cal. App. 5th 825 (Ct. App. Ca. 2018). Amaya Monique Martin and two other women had been apprehended after shoplifting cosmetics from a Walmart and a grocery store. Martin was convicted of conspiracy to commit petty theft, based in part on her own statement that she had been “recruited” to steal cosmetics for someone who planned to send them to Latin America. California law classifies shoplifting as a misdemeanor, but conspiracy to commit shoplifting (or conspiracy to commit petty theft) is a felony. Martin sought to have her felony conviction reduced to a misdemeanor shoplifting conviction. The court refused, emphasizing the unique dangers of a conspiracy:
The courts have long recognized the enhanced dangers of a conspiracy. Almost a hundred years ago, [this court] remarked: “[A] group of evil minds planning and giving support to the commission of crime is more likely to be a menace to society than where one individual alone sets out to violate the law.” “The theory … is that collaborative criminal activities pose a greater potential threat to the public than individual acts. ‘Criminal liability for conspiracy, separate from and in addition to that imposed for the substantive offense which the conspirators agree to commit, has been justified by a “group danger” rationale. The division of labor inherent in group association is seen to encourage the selection of more elaborate and ambitious goals and to increase the likelihood that the scheme will be successful. Moreover, the moral support of the group is seen as strengthening the perseverance of each member of the conspiracy, thereby acting to discourage any reevaluation of the decision to commit the offense which a single offender might undertake. And even if a single conspirator reconsiders and contemplates stopping the wheels which have been set in motion to attain the object of the conspiracy, a return to the status quo will be much more difficult since it will entail persuasion of the other conspirators. [Citations.]’ [Citations.]”
The instant case aptly demonstrates the enhanced dangers of a conspiracy. Respondent was not stealing cosmetics for her personal use. She was acting as part of an international conspiracy to steal cosmetics and transport them to Latin America, where they would be sold. There were no limits on her incentive to steal. The more cosmetics she stole, the more money she was guaranteed to receive. When she entered the Walmart and Albertson’s stores, she was accompanied by two coconspirators. They could steal considerably more than a single person acting alone. The presence of three coconspirators supporting each other decreased the chance that one of them would get “cold feet” and not go through with the theft. Moreover, one of them could act as a lookout to avoid detection by security personnel, thus increasing the likelihood that their criminal scheme would succeed.
Martin, 26 Cal. App. 5th 825, 836-37. One recent article challenges the claim that conspiracies are uniquely dangerous, suggesting that in some cases, expanding the number of people involved in planned criminal activity make the planned crime less likely to actually occur. The article thus proposes that legal definitions of conspiracy should be revised to require prosecutors to show proof of actual dangerousness. See Steven R. Morrison, Requiring Proof of Conspiratorial Dangerousness, 88 Tul. L. Rev. 483 (2014).
1. Why conspiracy, Part Two. Leaving aside principled arguments about whether conspiratorial agreements are particularly dangerous, one can identify some concrete practical implications of conspiracy law that can make conspiracy charges especially attractive to prosecutors. In some jurisdictions, including the federal system, conspiracy is different from other inchoate offenses in that it does not “merge” into the completed offense. Attempt does merge, in this sense: if a defendant attempts to manufacture a controlled substance, and then is eventually successful, the defendant can’t be convicted of both attempted manufacture and manufacture itself. The attempted manufacture is said to “merge” into the completed offense. But a conspiracy charge doesn’t merge, under federal law. A defendant who conspires to manufacture a controlled substance, and then actually does manufacture that substance, can be convicted of both conspiracy to manufacture and manufacture itself. Thus, conspiracy charges often add to a defendant’s overall criminal liability.
Additionally, federal conspiracy law embraces a concept known as Pinkerton liability, named after Pinkerton v. United States, 328 U.S. 640 (1946), and many states have adopted similar doctrines. Pinkerton liability is a form of derivative liability, like accomplice liability; it is a way to hold one defendant liable for the conduct of someone else. The case that gave the doctrine its name involved Walter and Daniel Pinkerton, brothers who transported and sold liquor in a bootlegging business that violated existing state regulations. At some point, Daniel was convicted and jailed for liquor-related offenses. While Daniel was in jail, Walter continued to run the bootlegging business, and (unsurprisingly) did not report his illegal profits as taxable income. Federal authorities later prosecuted both Walter and Daniel for conspiracy to commit tax evasion and for the underlying tax evasion offenses. Some of the tax evasion counts were based on Walter’s conduct during the time that Daniel was in jail. Daniel argued that he couldn’t be punished for acts that Walter committed while he (Daniel) was in jail. But the Supreme Court held that conspiracy was a continuing offense, and each conspirator could be held liable for any and all substantive crimes committed by any member of the conspiracy, so long as the crime was committed “in furtherance of the conspiracy.” If the brothers had a conspiratorial agreement to violate liquor laws, and if each act of tax evasion was done in furtherance of the overall conspiracy, then each brother could be held liable for the other’s crimes.
Pinkerton liability thus expands the number of people who can be held liable for any one crime committed “in furtherance” of a conspiracy, and it expands the number of crimes that can be charged against each member of a conspiracy. In a large and complex conspiracy, the prospect of Pinkerton liability can create a strong incentive for individual members of the conspiracy to cooperate with the government in the hopes of avoiding punishment for all substantive crimes committed by any of the co-conspirators. Pinkerton liability was widely criticized, and not widely used, until the 1970s, when federal prosecutors embraced it as a weapon in the war on drugs.
Check Your Understanding (9-2)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Withdrawal or Abandonment of a Conspiracy
Indiana Code § 35-41-5-2. Conspiracy
(a) A person conspires to commit a felony when, with intent to commit the felony, the person agrees with another person to commit the felony. A conspiracy to commit a felony is a felony of the same level as the underlying felony. However, a conspiracy to commit murder is:
(1) a Level 2 felony if the conspiracy does not result in the death of a person; and
(2) a Level 1 felony if the conspiracy results in the death of another person.
(b) The state must allege and prove that either the person or the person with whom he or she agreed performed an overt act in furtherance of the agreement.
(c) It is no defense that the person with whom the accused person is alleged to have conspired:
(1) has not been prosecuted;
(2) has not been convicted;
(3) has been acquitted;
(4) has been convicted of a different crime;
(5) cannot be prosecuted for any reason; or
(6) lacked the capacity to commit the crime.
Indiana Code § 35-42-1-1. Murder
A person who … knowingly or intentionally kills another human being … commits murder, a felony.
Indiana Code § 35-42-3-3. Confinement
A person who knowingly or intentionally confines another person without the other person’s consent commits criminal confinement….
Curtis Lee WEIDA, Appellant–Defendant
v.
STATE of Indiana, Appellee–Plaintiff
Court of Appeals of Indiana
778 N.E.2d 843
Nov. 21, 2002
MATHIAS, Judge.
Curtis Weida was convicted of Conspiracy to Commit Murder and Confinement… The trial court vacated the Confinement conviction on double jeopardy grounds, but sentenced Weida to fifty years executed for the Conspiracy to Commit Murder conviction. Weida appeals and raises two issues, which we restate as:
I. Whether the evidence was sufficient to support Weida’s conviction for Conspiracy to Commit Murder; and,
II. Whether the trial court abused its discretion when it refused to give Weida’s tendered jury instruction on withdrawal from conspiracy.
We affirm in part, reverse in part and remand for a new trial on the Conspiracy to Commit Murder count.
The facts most favorable to the verdict reveal that on more than one occasion prior to June 13, 2000, Weida told Kristen Gross (“Gross”), a young woman residing in his home, that he had fantasies that involved kidnapping a young boy and performing sexual acts on him…. On June 13, 2000, Weida asked Gross to go for a drive with him. During the drive, Weida informed Gross that they were driving around “to look for a kid.” Weida and Gross observed several young boys, and Weida made comments about them…
Eventually, Weida and Gross arrived in Kokomo, Indiana. While driving through a neighborhood, Weida and Gross observed a young boy, I.P., standing on the side of the road. Upon seeing I.P., Weida asked Gross, “[w]hat do you think,” to which Gross replied, “[t]oo young.” Weida then drove around the block and stopped the car near I.P. Gross asked Weida, “what do you want me to do, what’s going on, what are you going to do?” Weida responded, “[w]ell, you’re going to get out of the car and ask for directions to the mall or something.”
Gross got out of the car and asked I.P. how to get to the mall. As he began to tell her, Gross told him to tell Weida. As I.P. moved closer to the car to give Weida directions, Weida pushed up the front passenger seat and Gross shoved I.P. into the back of the car. Weida then gave Gross, who was in the backseat with I.P., a plastic “band” to tie I.P.’s wrists together, which she did. Before they had spotted I.P., Weida had shown the band to Gross and told her that she could use it to tie up a boy’s hands.
As they were driving out of Kokomo, Gross attempted to convince Weida that they should let I.P. go because she did not want Weida to kill I.P. Gross then made a failed attempt to burn the plastic band off of I.P.’s wrists. Weida told her that “if [they] couldn’t get him loose there was no option.” Gross’s understanding of that statement was that if she could not remove the band from I.P.’s wrists, Weida would kill him. Weida eventually stopped at a gas station and borrowed a pair of scissors that were used to cut the band around I.P.’s wrists. Weida then told I.P. to stick out his hands, put a gun in them, and stated “[t]hat’s what’s going to happen to you if you tell.” Weida drove back to Kokomo, and before they dropped I.P. off, Weida stated, “[n]ow you remember what will happen, we know where you live.”
On September 18, 2000, Weida was charged with Conspiracy to Commit Murder, a Class A felony, and Confinement, as a Class B felony. On September 17, 2001, a jury trial began, and the jury found Weida guilty of both charges. At the sentencing hearing, the trial court vacated the Confinement conviction on double jeopardy grounds, but sentenced Weida to fifty years executed for the Conspiracy to Commit Murder conviction. Weida now appeals….
… To convict Weida of Conspiracy to Commit Murder, the State had to prove that while having the intent to commit murder, Weida and Gross entered into an agreement to commit murder, and either Weida or Gross performed an overt act in furtherance of the agreement. However, the State was not required to prove that murder was actually committed or even attempted.[5] Weida argues that the evidence did not establish that he intended to kill I.P. or that there was an agreement between himself and Gross to do so.
The State is not required to establish the existence of a formal express agreement to prove a conspiracy. “It is sufficient if the minds of the parties meet understandingly to bring about an intelligent and deliberate agreement to commit the offense.” An agreement can be inferred from circumstantial evidence, which may include the overt acts of the parties in furtherance of the criminal act. With regard to the intent element, we note that to determine whether the defendant had the requisite intent to commit the crime alleged, “[t]he trier of fact must usually resort to circumstantial evidence or reasonable inferences drawn from examination of the circumstances surrounding the crime.”
At trial, Gross testified that she and Weida had several conversations concerning Weida’s fantasies that involved performing sexual acts on the dead body of a young boy. On the date they drove to Kokomo, Weida had two guns in the car and a plastic band. Weida told Gross that the band could be used to tie a boy’s hands together. Weida drove through several towns and made comments about the young boys they observed indicating for example that a given boy was too old. Although Gross testified that she had no intent to kill I.P., she was aware of Weida’s fantasies and testified that she knew Weida wanted to act out those fantasies after they spotted I.P., and he told her to ask him for directions. Furthermore, Gross actively participated in the crime by shoving I.P. into the car after Weida had pushed up the front seat and by tying the plastic band around I.P.’s wrists. From this evidence, the jury could have reasonably concluded that Weida intended to kill I.P. and that he and Gross entered into an agreement to do so. Therefore, the evidence presented at trial was sufficient to support Weida’s conviction for Conspiracy to Commit Murder.
Weida also argues that the trial court abused its discretion when it refused to give his tendered jury instruction regarding withdrawal from the conspiracy. “The giving of jury instructions lies within the trial court’s sound discretion, and we review the court’s refusal to give a tendered instruction for an abuse of that discretion.” …
At trial, Weida tendered the following jury instruction:
To withdraw from conspiracy, defendant must cease his activity in the conspiracy and take affirmative act to defeat or disavow conspiracy’s purposes either by making full confession to the authorities or by communicating his withdrawal in a manner reasonably calculated to inform co-conspirators, and his withdrawal must be both complete and in good faith.
Withdrawal from a conspiracy is an affirmative defense under federal law and Weida’s instruction adequately describes the elements of that defense. However, withdrawal from a conspiracy has not been recognized as a defense under Indiana law. In his brief, Weida argues that his tendered instruction is a correct statement of the [Indiana] defense of abandonment, which was not covered by any other instruction; therefore, the trial court abused its discretion when it refused to give the instruction to the jury.
The State argues that Weida’s tendered instruction was not a correct statement of the law of the abandonment defense. Indiana Code section 35–41–3–10 describes the defense of abandonment [that can be raised by a defendant charged with conspiracy, attempt, or aiding and abetting an offense] and provides:
[I]t is a defense that the person who engaged in the prohibited conduct voluntarily abandoned his effort to commit the underlying crime and voluntarily prevented its commission.
Ind. Code § 35–41–3–10 (1998). “To be considered voluntary, the decision to abandon must originate with the defendant, not as a result of extrinsic factors that increase the probability of detection.” Estep v. State (Ind. Ct. App. 1999). Also, the defendant must have forsaken the criminal plan before completion of the underlying crime or before it became inevitable. Comparing the defenses of withdrawal and abandonment, it is clear that they consist of the same concepts because both defenses require that the defendant forsake the conspiracy.
However, the State contends that the tendered withdrawal instruction “reduces Defendant’s burden in establishing the affirmative defense of abandonment.” We disagree. The defense of withdrawal requires the defendant to affirmatively act to defeat the conspiracy, whereas the defense of abandonment requires only that the defendant voluntarily abandon his effort to commit the crime. Like lesser-included offenses, an analogy could be made that abandonment is a lesser-included defense of withdrawal. For example, if a group of individuals agrees to rob a bank, and one of those individuals voluntarily decides to forsake his part in the conspiracy, those facts might be sufficient to establish the defense of abandonment. However, those facts would clearly not be sufficient to establish the defense of withdrawal unless the individual took some affirmative act to defeat the conspiracy, such as contacting the police.
Although abandonment is clearly established as a defense by statute, withdrawal has never been recognized as a defense in Indiana. While the defendant bears the additional burden of demonstrating that he took an affirmative act to defeat the goals of the conspiracy to establish the withdrawal defense, withdrawal and abandonment are essentially the same defense. The instruction was not covered by other instructions and there was evidence in the record that would support giving the withdrawal instruction to the jury because Weida did not attempt to murder I.P., but rather he set him free. Under these extraordinary facts and circumstances, we hold that refusal of Weida’s withdrawal instruction was an abuse of the trial court’s discretion.
Conclusion
The evidence presented at trial was sufficient to support Weida’s conviction for Conspiracy to Commit Murder. However, the trial court abused its discretion when it refused to give his tendered instruction regarding the defense of withdrawal. Therefore, we reverse Weida’s conviction for Class A felony Conspiracy to Commit Murder, but we further order the trial court to reinstate Weida’s Class B felony Confinement conviction pending the result of any retrial.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
Notes and questions on People v. Weida
1. Did Kristen Gross agree to commit murder? Does it matter to Weida’s criminal liability whether Gross agreed? Think again of bilateral and unilateral definitions of conspiracy. Which does Indiana seem to adopt?
2. What is the difference between the affirmative defense of withdrawal (described here by the court, and recognized under federal law, but not recognized as a defense under Indiana law) and the Indiana statutory defense of abandonment?
3. The jury convicted Weida of both conspiracy to commit murder and the separate crime of “confinement.” The trial court then vacated the confinement conviction on double jeopardy grounds. Look at the confinement statute, reprinted before the court’s opinion. Why, in this case, would convictions for both confinement and conspiracy to commit murder violate double jeopardy? After the 2002 opinion you’ve just read, Weida was retried for both confinement and conspiracy to commit murder. He was allowed to present his abandonment argument at the new trial, but was convicted again of conspiracy to murder. Once he was convicted of the conspiracy to murder charge, the confinement charge was again vacated. As a state court later explained, “the evidentiary facts that supported the criminal confinement offense were most likely the same evidentiary facts that supported the conspiracy to commit murder charge….”
4. The Model Penal Code adopts a unilateral approach to conspiracy, and also offers an affirmative defense called “renunciation.” Consider Model Penal Code § 5.03:
(1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
(a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or
(b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
(2) Scope of Conspiratorial Relationship. If a person guilty of conspiracy, as defined by Subsection (1) of this Section, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such crime.
(3) Conspiracy with Multiple Criminal Objectives. If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.
(5) Overt Act. No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.
(6) Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.
Is “renunciation” under the MPC similar to the federal defense of “withdrawal,” the Indiana defense of “abandonment,” or is it different from both?
Complicity, Conspiracy, and Drug Offenses
Rev. Code Washington 9.01.030 [since recodified]
Every person concerned in the commission of a felony, gross misdemeanor or misdemeanor, whether he directly commits the act constituting the offense, or aids or abets in its commission, and whether present or absent; and every person who directly or indirectly counsels, encourages, hires, commands, induces or otherwise procures another to commit a felony, gross misdemeanor or misdemeanor, is a principal, and shall be proceeded against and punished as such. The fact that the person aided, abetted, counseled, encouraged, hired, commanded, induced or procured, could not or did not entertain a criminal intent, shall not be a defense to any person aiding, abetting, counseling, encouraging, hiring, commanding, inducing or procuring him.
The STATE of Washington, Respondent
v.
Bruce W. GLADSTONE, Appellant
Supreme Court of Washington, En Banc
474 P.2d 274
Sept. 10, 1970
HALE, Justice.
A jury found defendant Bruce Gladstone guilty of aiding and abetting one Robert Kent in the unlawful sale of marijuana. Deferring imposition of sentence, the court placed defendant on probation. He appeals the order deferring sentencing contending that the evidence as a matter of law was insufficient to sustain a verdict of guilty. His point, we think, is well taken.
…Gladstone’s guilt as an aider and abettor in this case rests solely on evidence of a conversation between him and one Douglas MacArthur Thompson concerning the possible purchase of marijuana from one Robert Kent. There is no other evidence to connect the accused with Kent who ultimately sold some marijuana to Thompson.
When asked by Thompson—an agent of the police—where marijuana could be bought, the defendant did no more than name Kent as an individual who might be willing to sell some and draw a sketch of his location. There was no evidence whatever that the defendant had any association, understanding, agreement or arrangement, direct or indirect, tacit or express with Kent to aid or persuade him in any way in the sale of marijuana.
The conversation between defendant and Thompson occurred at defendant’s residence. Douglas MacArthur Thompson, a 25-year-old student at the University of Puget Sound in Tacoma and an employee of the Internal Revenue Service of the United States, had done some investigative work for the government. From time to time, the Tacoma Police Department engaged him to investigate the use, possession and sale of narcotics, principally marijuana, among college students….
Thompson testified that Lieutenant Seymour and Detective Gallwas of the narcotics detail asked him to attempt a purchase of marijuana from Gladstone. During the evening of April 10, 1967—between 10 and 11 o’clock—the two officers and Thompson drove in a police car to the vicinity of defendant’s apartment. Thompson went to Gladstone’s door alone, beyond the hearing and out of the sight of the two officers. He knocked at the door and Gladstone respond[ed]. Thompson asked Gladstone if he would sell him some marijuana. Describing this incident, Thompson testified as follows:
… Gladstone told me that he was—he did not have enough marijuana on hand to sell me any, but he did know an individual who had quite a sufficient quantity and that was very willing to sell and he named the individual as Robert Kent, or Bob Kent as he put it, and he gave me directions to the residence…. I asked him if, you know, if he could draw me a map and he did.
[Thompson] added, ‘I’m not sure whether he did give me the exact address or not, he told me where the residence was.’ He said that Gladstone then with pencil and paper sketched the location of Kent’s place of residence…
The two officers then took Thompson to Kent’s residence where marijuana was purchased. The actual purchase was made by Thompson directly from Kent while [the officers] stayed in the police car. Kent was subsequently arrested and convicted of selling Thompson approximately 8 ounces of marijuana—the very sale which defendant here was convicted of aiding and abetting.
That ended the prosecution’s case. Even if it were accorded all favorable inferences, there appears at this point a gap in the evidence which we feel as a matter of law is fatal to the prosecution’s cause. Neither on direct examination nor under cross-examination did Thompson testify that he knew of any prior conduct, arrangements or communications between Gladstone and Kent from which it could be even remotely inferred that the defendant had any understanding, agreement, purpose, intention or design to participate or engage in or aid or abet any sale of marijuana by Kent. Other than to obtain a simple map from Gladstone and to say that Gladstone told him Kent might have some marijuana available, Thompson did not even establish that Kent and the defendant were acquainted with each other….
Except for the conversation between Gladstone and Thompson and the map, the state showed only that the officers and their informant, Thompson, went to Kent’s residence, more than 3 or 4 blocks from where Gladstone lived, [and] bought some marijuana from him…. Thus, at the close of its case in chief, the state had failed to show any connection or association whatever between Gladstone and Kent or even that they knew each other, and at that juncture a motion for dismissal would lie.
…Gladstone took the stand and testified that he had been a student at the University of Puget Sound in Tacoma for 2 years and that he did not know the police informant, Douglas MacArthur Thompson, personally but had seen him on campus. Prior to the evening of April 10, 1967, he said, Thompson had never been in his home. As to Kent, the party whom he was accused of aiding and abetting, he said he had seen him between classes having coffee at the student union building, and perhaps had been in his company about 10 times altogether. He knew where Kent lived because once en route home in his car he had given Kent a lift from the student union building to the latter’s house. On this singular occasion, Gladstone did not get out of the car. He said that he did not know that Kent used marijuana or kept it for sale to other people.
Describing the incidents of April 10, 1967, when Thompson came to his door, Gladstone’s version of the event differed somewhat from Thompson’s. He testified that Thompson asked him to sell him some pot and Gladstone said, ‘No,’ and:
A. Then he asked me if I knew Rob Kent and I said yes. Q. What did you tell him? A. I said yes, I knew Rob Kent, and he asked me if I knew where Rob Kent lived and I said that I didn’t know the address, nor did I know the street upon which he lived, but I told him that I could direct him there. Q. And did he ask you to direct him? A. Yes, I started to explain how to get there and he asked me if I would draw him a map. Q. And did you do so? A. Yes, I did.
… After that brief conversation, Thompson said, ‘Thank you,’ and left. Gladstone testified that he did not counsel, encourage, hire, command, induce or otherwise procure Robert Kent to make a sale of marijuana to Douglas Thompson—or do anything that would be their legal equivalent. Thus, the state at the close of its case had not established prima facie that Gladstone, as charged, aided and abetted Kent in the sale of marijuana, and its position did not improve with the defendant’s case.
If all reasonable inferences favorable to the state are accorded the evidence, it does not, in our opinion, establish the commission of the crime charged. That vital element—a nexus between the accused and the party whom he is charged with aiding and abetting in the commission of a crime—is missing. The record contains no evidence whatever that Gladstone had any communication by word, gesture or sign, before or after he drew the map, from which it could be inferred that he counseled, encouraged, hired, commanded, induced or procured Kent to sell marijuana to Douglas Thompson as charged, or took any steps to further the commission of the crime charged. He was not charged with aiding and abetting Thompson in the purchase of marijuana, but with Kent’s sale of it.
Nor can it be said here that the state proved the existence of a conspiracy. In this state, conspiracy to commit a crime is a gross misdemeanor. The crime is complete when the conspirators have reached an agreement or understanding or consummated a plan to do the unlawful acts, for the conspiracy statute does not require proof of the common-law element of an overt act in pursuance of the conspiracy. RCW 9.22.020. Conspiracy, therefore, is a crime separate, distinct from, and unincluded in the crime which the conspirators have agreed to commit. … One may become a principal through aiding and abetting another in the commission of a crime without participating in a conspiracy. But to be a principal one must consciously share in a criminal act and participate in its accomplishment.
Thus, even without prior agreement, arrangement or understanding, a bystander to a robbery could be guilty of aiding and abetting its commission if he came to the aid of a robber and knowingly assisted him in perpetrating the crime. But regardless of the modus operandi and with or without a conspiracy or agreement to commit the crime and whether present or away from the scene of it, there is no aiding and abetting unless one “in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.”
In the instant case, the record is totally devoid of any proof whatever that the defendant and Kent had any arrangement, agreement or understanding, or in any way conspired and confederated with each other concerning the sale of marijuana by Kent. There was no proof that they had talked about it with each other, directly or through others. Whatever information the defendant is shown by the record to have given the police informant, to the effect that Kent might sell him some marijuana, amounted at most to no more than a statement of opinion and possibly no more than campus gossip, rumor or innuendo. That the police ultimately bought marijuana from Kent would not, without more, operate to convert defendant’s statement to the police, that Kent would or might sell marijuana, into an aiding, abetting, counseling or encouraging of Kent to make the sale.
…Another case—and one nearly identical with the instant case—affirms the foregoing principles. In Moreiv. United States (6th Cir. 1942), undercover narcotic agents approached the defendant, a physician, and asked him to sell them narcotics. The doctor told the agents he had none, but gave the agents the name of another party and advised the agent to tell the latter that the doctor had sent him. The doctor added that ‘he will take care of you.’ The agents did arrange a purchase of illegal narcotics from the person to whom the doctor had referred them, and the doctor was thereupon charged with aiding and abetting in the sale.
After tracing the common-law distinction between a principal in the second degree and an accessory before the fact and pointing out that an aider and abettor must at least procure, counsel or command another to commit the felony actually committed, the court said:
It is not necessary that there should be any direct communication between an accessory before the fact and the principal felon; it is enough if the accessory direct an intermediate agent to procure another to commit the felony, without naming or knowing of the person to be procured. A person is not an accessory before the fact, unless there is some sort of active proceeding on his part; he must incite, or procure, or encourage the criminal act, or assist or enable it to be done, or engage or counsel, or command the principal to do it….
* * * It is not to be assumed that Congress, in defining as a principal, one who ‘procures the commission of an offense,’ and using almost the identical language by which the common law defined aiders, abettors, and accessories, was providing for a new crime theretofore unknown. If the criterion for holding that one is guilty of procuring the commission of an offense, is that the offense would not have been committed except for such a person’s conduct or revelation of information, it would open a vast field of offenses that have never been comprehended within the common law by aiding, abetting, inducing or procuring. * * *
* * * (T)he only thing Dr. Platt did was to give Beach the name of Morei as a man from whom he might secure heroin to does horses in order to stimulate them in racing. This is not the purposive association with the venture that, under the evidence in this case, brings Dr. Platt within the compass of the crime of selling or purchasing narcotics, either as principal, aider and abettor, or accessory before the fact. (Italics ours.)
This court has recognized the necessity of proof of a nexus between aider and abettor and other principals to sustain a conviction. In State v. Hinkley (1958), amplifying the term abet, we said:
Although the word ‘aid’ does not imply guilty knowledge or felonious intent, the word ‘abet’ includes knowledge of the wrongful purpose of the perpetrator, as well as counsel and encouragement in the crime.
and approved the instruction that:
To abet another in the commission of a crime implies a consciousness of guilt in instigating, encouraging, promoting or aiding in the commission of such criminal offense.
It would be a dangerous precedent indeed to hold that mere communications to the effect that another might or probably would commit a criminal offense amount to an aiding and abetting of the offense should it ultimately be committed.
There being no evidence whatever that the defendant ever communicated to Kent the idea that he would in any way aid him in the sale of any marijuana, or said anything to Kent to encourage or induce him or direct him to do so, or counseled Kent in the sale of marijuana, or did anything more than describe Kent to another person as an individual who might sell some marijuana, or would derive any benefit, consideration or reward from such a sale, there was no proof of an aiding and abetting, and the conviction should, therefore, be reversed as a matter of law. Remanded with directions to dismiss.
HAMILTON, Justice (dissenting).
In my view the majority has stepped into the jury box and with a flourishing dissection of the evidence placed its own interpretation thereupon and, together with deftly importing the conspiratorial element of community of purpose, has substituted its verdict for that of the jury.
Before discussing the evidence adduced at the trial, I consider it appropriate to briefly review the law concerning the offense of aiding and abetting.
At common law, persons associated in some way in the commission of a crime were classified as principals and accessories. These classifications in turn were broken down into the categories of principals in the first and second degree and accessories before and after the fact. The designation of principal in the first degree was applied to the actual perpetrator of the crime, while the characterization of principal in the second degree pertained to one who was present, either actually or constructively, at the scene of the crime assisting in some fashion the principal in the first degree. The rank of accessory before the fact was attached to one who, though not present at the scene of the offense, counseled, advised, or directed commission of the crime, while one who, knowing a crime had been committed, aided or assisted the felon in escaping capture and prosecution was denominated an accessory after the fact….
This state, in common with many jurisdictions, legislatively abolished the common law classifications of principals in the first and second degree and accessories before the fact by and through the enactment of RCW 9.01.030, which provides:
Every person concerned in the commission of a felony, gross misdemeanor or misdemeanor, whether he directly commits the act constituting the offense, or aids or abets in its commission, and whether present or absent; and every person who directly or indirectly counsels, encourages, hires, commands, induces or otherwise procures another to commit a felony, gross misdemeanor or misdemeanor, is a principal, and shall be proceeded against and punished as such. The fact that the person aided, abetted, counsel, encouraged, hired, commanded, induced or procured, could not or did not entertain a criminal intent, shall not be a defense to any person aiding, abetting, counseling, encouraging, hiring, commanding, inducing or procuring him.
In the construction of this statute this court has said that each of the words of the statute, from which criminal culpability can flow, signifies the overt and affirmative doing or saying of something on the part of a person charged which directly or indirectly contributes to the commission of the primary crime.
It is not necessary to sustain a charge of aiding, abetting or counseling a crime that there be proof of a conspiratorial relationship or confederacy between the actual perpetrator of the primary crime and the one charged as an aider or abettor. Criminal conspiracy, in which concert of purpose becomes a salient element, is a separate substantive offense. RCW 9.22.010. Thus, it is stated in Pereira v. United States (1954);
Aiding, abetting, and counseling are not terms which presupposed the existence of an agreement. Those terms have a broader application, making the defendant a principal when he consciously shares in a criminal act, regardless of the existence of a conspiracy.
As is apparent from its language, our statute does not require the presence at the scene of the crime of one aiding, abetting, counseling or inducing the commission of a crime. Neither does it require a community of intent, for by the last sentence it provides that absence of criminal intent on the part of the person aided, abetted or induced to commit the primary offense is no defense to the aider or abettor. The statutory language and the overt action it contemplates does, however, give rise to the requirement that the aider or abettor entertain a conscious intent, I.e., knowledge and intent that his action will instigate, induce, procure or encourage perpetration of the primary crime.
The question to be resolved, then, in the instant case is whether the evidence sustains the jury’s conclusion that the appellant entertain the requisite intent to render him culpable as an aider or abettor. In the resolution of this question, it is to be borne in mind that appellant’s challenge to the sufficiency of the evidence requires that the evidence, and all reasonable inferences to be drawn therefrom, be interpreted in a light most favorable to the state. Furthermore, this court has held that an aider’s or abettor’s culpability may be established by circumstantial evidence.
Although the evidence in the case is conflicting, the jury was entitled to believe that on April 10, 1967, one Robert Kent sold marijuana to Douglas Thompson…; that prior to the evening of April 10, 1967, when Thompson talked to appellant, Thompson and the Tacoma Police Department were unaware of Kent or his association with marijuana; that appellant knew Kent, whom he met and associated with on the campus of the school they respectively attended; that both appellant and Kent lived off campus; that appellant knew where Kent lived and on at least one occasion had driven him home; that at the time in question the Tacoma Police Department had information that appellant was supposed to be holding a supply of marijuana for sale…; that appellant [told Thompson] that he did not have enough marijuana on hand to sell but that he knew an individual who did have an ample supply and who was willing to sell some and named the individual as Robert Kent; that upon request appellant orally gave Thompson directions to Kent’s apartment and drew a map to aid Thompson in finding the address, utilizing as a reference point a building known to appellant to be a student rendezvous where drugs had been sold; that by using the map and oral directions Thompson and the police went to Kent’s residence; That Thompson approached Kent and told him ‘Gladstone had sent me’ whereupon Kent invited him to a room and sold him some marijuana for \$30; and that Thompson and one of the police officers later returned to the Kent residence, after again visiting appellant, and made a second purchase of marijuana at which time Kent was arrested.
Based upon the foregoing circumstances and the inferences reasonably derivable therefrom, I am satisfied that the jury was fully warranted in concluding that appellant, when he affirmatively recommended Kent as a source and purveyor of marijuana, entertained the requisite conscious design and intent that his action would instigate, induce, procure or encourage perpetration of Kent’s subsequent crime of selling marijuana to Thompson. Furthermore, insofar as an element of preconcert be concerned, certainly the readiness with which the passwords, ‘Gladstone had sent me,’ gained a stranger’s late evening entree to Kent’s domain and produced two illegal sales strongly suggests, if not conclusively establishes, the missing communal nexus which the majority belabors.
Finally, the jury, with the witnesses before it, was in a far better position to evaluate the witnesses’ candor, voice inflections, appearance, demeanor, attitude and credibility than this court viewing naught but the cold record.
I would sustain the jury’s verdict and affirm the judgment.
Check Your Understanding (9-3)
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Notes and questions on Gladstone
1. Bruce Gladstone was charged with selling marijuana as an accomplice, not with purchasing it or possessing it. That is, Gladstone was charged as an accomplice to Kent, not as an accomplice to Thompson, who was working as a police informant. Do you think that distinction makes a difference to the court?
2. The dissenting opinion offers one way to think about the difference between complicity and conspiracy. Conspiracy, the dissent argues, requires the “concert of purpose” or “community of intent” that the majority seems to believe is lacking in this case, but (the dissent would argue) complicity, or accomplice liability, does not require that concert of purpose. In other words, the dissent suggests that the majority has conflated conspiracy and complicity. Is this an accurate characterization of the majority opinion, in your view? Is it “community of intent” or “concert of purpose” that is missing from the prosecution’s evidence, according to the majority opinion?
3. Gladstone also raises an important question about the appropriate criminal liability, if any, for what might be called aiding with indifference. Traditional doctrines of complicity require the accomplice to intend to facilitate the underlying criminal offense. That is, the required mental state for complicity is usually said to be “true purpose” or a real intention that the crime take place. But what about a person who facilitates criminal activity by others but is indifferent to their success? What if a defendant is, like Bruce Gladstone, aware that someone is seeking help with criminal activity, but not particularly invested in whether that activity takes place or not? Some states have enacted “criminal facilitation” statutes that do not require the purpose or intent traditionally required for accomplice liability. Here is one example:
A person is guilty of criminal facilitation in the second degree when, believing it probable that he is rendering aid to a person who intends to commit a class A felony, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit such class A felony.
N.Y. Penal Law §115.05. New York has more or less serious versions of criminal facilitation depending on the seriousness of the crime facilitated and the age of the person that the defendant assists.
1. Unlike many appellate opinions addressing complicity or conspiracy in the context of drug trafficking, Gladstone involves only a few parties and relatively simple facts. For that reason, it’s a good case to help clarify complicity, conspiracy, and the relation between the two. But as a 1970 decision, Gladstone also offers a snapshot of a drug prosecution just before the War on Drugs gained new intensity and used expanded notions of complicity and conspiracy to obtain more drug trafficking convictions. Note that the Gladstone majority relies again on Judge Learned Hand’s language from United States v. Peoni: accomplice liability requires that the defendant “associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.” Recall that Judge Hand applied this principle to conclude that Peoni, who sold counterfeit bills to Regno, could not be convicted as an accomplice to Dorsey after Regno sold the bills to Dorsey. Now imagine that the contraband is narcotics, not counterfeit bills. Contemporary prosecutors use expanded notions of accomplice liability and conspiracy, including but not limited to Pinkerton liability, to link together various participants in the drug trade, whether or not they have direct contact with each other or specific awareness of one another’s offenses.
1. [Fn. 7 by the Court:] Some authorities suggest an exception to the general rule when another crime is the “natural and probable consequence” of the crime the defendant intended to abet…. That question is not implicated here, because no one contends that a § 924(c) violation is a natural and probable consequence of simple drug trafficking. We therefore express no view on the issue.
2. [Fn. 8 by the Court:] We did not deal in these cases, nor do we here, with defendants who incidentally facilitate a criminal venture rather than actively participate in it. A hypothetical case is the owner of a gun store who sells a firearm to a criminal, knowing but not caring how the gun will be used. We express no view about what sort of facts, if any, would suffice to show that such a third party has the intent necessary to be convicted of aiding and abetting.
3. [Fn. 9 by the Court:] Of course, if a defendant continues to participate in a crime after a gun was displayed or used by a confederate, the jury can permissibly infer from his failure to object or withdraw that he had such knowledge. In any criminal case, after all, the factfinder can draw inferences about a defendant’s intent based on all the facts and circumstances of a crime’s commission.
4. [Fn. 10 by the Court:] Contrary to the dissent’s view, nothing in this holding changes the way the defenses of duress and necessity operate. Neither does our decision remotely deny that the “intent to undertake some act is ... perfectly consistent with the motive of avoiding adverse consequences which would otherwise occur.” Our holding is grounded in the distinctive intent standard for aiding and abetting someone else’s act—in the words of Judge Hand, that a defendant must not just “in some sort associate himself with the venture” (as seems to be good enough for the dissent), but also “participate in it as in something that he wishes to bring about” and “seek by his action to make it succeed.” For the reasons just given, we think that intent standard cannot be satisfied if a defendant charged with aiding and abetting a § 924(c) offense learns of a gun only after he can realistically walk away—i.e., when he has no opportunity to decide whether “he wishes to bring about” (or make succeed) an armed drug transaction, rather than a simple drug crime. And because a defendant’s prior knowledge is part of the intent required to aid and abet a § 924(c) offense, the burden to prove it resides with the Government.
5. [Fn. 6 by the court:] We also note that in many instances the alleged overt act in a conspiracy would also constitute a substantial step toward the commission of a crime, which is an essential element in an attempt conviction. This is the reason for the prohibition against conviction for conspiracy to commit a crime and conviction for attempt to commit the same underlying crime. | textbooks/biz/Criminal_Law/Criminal_Law%3A_An_Integrated_Approach_(Ristroph)/1.09%3A_Group_Criminality.txt |
Introduction
Nearly universally, persons wish to avoid the burdens of a criminal conviction. Once charged with an offense, defendants often face a range of different outcomes. As you know by now, for many defendants a guilty plea may seem the best available option, especially if they face the threat of pretrial detention or more severe charges at trial. But for those defendants who decide against a guilty plea, there are a few main strategies to avoid conviction. The type of defense that is the focus of this chapter—the affirmative defense—is best understood in relation to other types of defense arguments that you have already seen.
Because the prosecution bears the burden of proof in a criminal case, one defense strategy is to argue that the prosecution has not met that burden. A failure of proof argument is a claim that the prosecution has not adequately proven all necessary elements of the charged offense. There are many variations of a failure of proof claim. You have seen sufficiency of the evidence claims, in which the defendant argues that the evidence is insufficient to establish one or more elements of the offense. Other failure of proof claims may be linked to questions of statutory interpretation. For example, a defendant may argue that, when the language of the statute is properly interpreted, it requires proof of a given mental state that the prosecution has not established. Challenges to jury instructions may also be a form of failure of proof claim. A defendant could argue that a jury instruction misstated the law and thus did not require the jury to find the precise elements required by the applicable statute. (Still another approach, one you will see frequently in a course in constitutional criminal procedure, is an effort to suppress the prosecution’s key evidence by arguing that the evidence was seized in violation of the federal or state constitution. Without the necessary evidence, the prosecution would then be unable to meet its burden of proof. In this book, you saw this kind of argument in Commonwealth v. Copenhaver in Chapter One, but for the most part we do not address issues of constitutional criminal procedure.)
Less frequently, defendants may try to avoid a conviction (or get it reversed on appeal) by raising a constitutional challenge to the statute itself or to an enforcement decision other than the obtaining of evidence. In Chapters Two and Three, you saw examples of these types of constitutional challenges, such as the argument in City of Chicago v. Morales that Chicago’s gang loitering statute was void for vagueness and thus a violation of the Due Process Clause, or the argument in United States v. Armstrong that prosecutors had selected defendants for prosecution in a racially biased manner that violated the Equal Protection Clause. And you have seen other appeals to both state and federal constitutional constraints occasionally throughout the book.
This chapter focuses on a third type of defense argument: the affirmative defense. In contrast to a failure of proof claim, an affirmative defense typically does not dispute that the prosecution can establish the elements of the charged offense. And in contrast to a constitutional claim, an affirmative defense argument does not challenge the government’s constitutional authority to enact the relevant statute or use it against the defendant. Instead, an affirmative defense is an argument that the defendant should not be convicted and punished even if the evidence establishes the elements of the charged offense. Courts and scholars frequently speak of affirmative defenses in terms of justification and excuse. Some affirmative defenses, such as self-defense, are classified as justifications on the theory that a defendant was justified in committing the conduct that violates the statute, perhaps because committing the crime was necessary to avoid a still worse outcome (such as the defendant’s own death at the hands of an attacker). Some affirmative defenses, such as insanity, are characterized as excuses rather than justifications: when a person with severe mental illness commits a crime, we do not say that the person was justified in acting that way, but we may choose to excuse the person from criminal liability if we think the mental illness was severe enough. You have seen a few examples of other types of affirmative defenses, such as the mistake-of-law affirmative defense that the defendant raised unsuccessfully in People v. Marrero (Chapter Seven), or the abandonment / renunciation defense to a charge of attempt, discussed in People v. Acosta (Chapter Eight). (In those two cases, neither court characterized the affirmative defense in terms of justification or excuse, but it’s likely both the mistake-of-law and abandonment defenses would be seen as arguments that the defendant’s conduct should be excused, rather than arguments that it was justified conduct.)
Affirmative defense arguments are not often successful, but they can be illuminating. They can help clarify the state’s choices to impose criminal liability by providing a point of contrast: when does the legal system decline to impose criminal liability, even on someone whose conduct and mental state meets the statutory definition of a criminal offense? Self-defense arguments have drawn particular attention in recent years thanks to several high-profile cases in which a white (or non-Black) defendant killed an unarmed Black victim but avoided conviction by claiming self-defense. As will be discussed in this chapter, the success of a self-defense claim usually depends on convincing a judge (and possibly a jury) that the defendant had a “reasonable” fear for his own life. Thus, self-defense claims often put the target of force on trial, in a sense; the question becomes whether the person who was shot or otherwise harmed was “reasonably” perceived as threatening. If race affects who is perceived as dangerous, then race can influence which self-defense claims are successful. Many commentators have argued that self-defense law undervalues Black lives by accommodating biased fears of Blacks. Indeed, the 2012 killing of Trayvon Martin by George Zimmerman, followed by Zimmerman’s subsequent acquittal on grounds of self-defense, launched the Black Lives Matter movement. Though more empirical research is needed to fully understand racial disparities in self-defense claims, it appears that white defendants who kill Black victims are about ten times more likely to prevail with a self-defense claim than Black defendants who kill white victims, and white defendants who kill Black victims are about eight times more likely to prevail with a self-defense claim than all other combinations (white killing white, Black killing Black, etc.). See Addie C. Rolnick, Defending White Space, 40 Cardozo L. Rev. 1639, 1654-1655 (2019).
Race has been a contentious issue in many self-defense cases; gender has been salient in others. One strand of controversial self-defense cases involves women who kill allegedly abusive partners. Self-defense law generally requires proof that the defendant responded to an “imminent” threat using only “necessary” force. Gender can potentially influence the perception of a threat as imminent, or the perception that force is necessary. Some critics of traditional self-defense doctrine have argued that it is based on a background assumption of the “true man” that does not give abused women adequate leeway to protect themselves.
As is true with crime definitions, affirmative defenses may be defined differently in different jurisdictions. However, there are clear patterns and a lot of commonality across different states and the federal system. This chapter will identify the most common legal definitions of the affirmative defenses of self-defense, duress, necessity, and insanity. Like crime definitions, affirmative defenses can be described as lists of elements: what are the specific facts that must be established in order for the defendant to avoid conviction? But affirmative defenses differ from crime definitions in two important respects. First, common law doctrines remain more influential in the context of affirmative defenses. Although most U.S. jurisdictions require crimes to be defined by legislatures in statutory text, there is more variation with affirmative defenses. Some jurisdictions do define affirmative defenses by statute, but others rely on common law definitions. In this chapter, you will see examples of both approaches.
Second, the prosecution bears the burden of proof with respect to the elements of crimes, but the defendant often bears the burden of proving an affirmative defense. To be sure, the standard of proof is typically lower than “beyond a reasonable doubt” – for example, a defendant may have to prove the elements of duress by a preponderance of the evidence, or the elements of insanity by clear and convincing evidence. For self-defense, defendants typically have a burden of production but not the ultimate burden of proof. That is, most states provide that once the defendant has introduced sufficient evidence of self-defense, the prosecution then bears the burden of disproving the self-defense claim beyond a reasonable doubt. Just as the precise elements of an affirmative defense are defined by the specific jurisdiction, the allocation of the burden of proof, and the precise standard of proof, for such a defense will also be determined by the specific jurisdiction.
This chapter focuses on four affirmative defenses: self-defense, necessity, duress, and insanity. Each of these defenses is highly individualistic, in the sense that each focuses on the particular circumstances and mental states of an individual defendant. In this regard, the law of affirmative defenses (like the rest of criminal law) treats responsibility for crime as a matter of individual, rather than social, responsibility. Although there is considerable evidence that social and environmental factors – including poverty, family circumstances, access to health care, and similar variables – have substantial effects on the likelihood that a person will engage in conduct that leads to an arrest and prosecution, American criminal law has generally resisted taking any of those factors into account in deciding an individual’s criminal liability. See, e.g., Richard Delgado, “Rotten Social Background”: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?, 3 Law & Inequality 9 (1985); Andrew E. Taslitz, The Rule of Criminal Law: Why Courts and Legislatures Ignore Richard Delgado’s Rotten Social Background, 2 Ala. C.R. & C.L. L. Rev. 79 (2011).
Self-defense
N.Y. Penal Law § 35.15. Justification; use of physical force in defense of a person
1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:
(a) The latter’s conduct was provoked by the actor with intent to cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or
(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.
2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is:
(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter’s direction, acting pursuant [to law]; or
(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or
(c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by § 35.20.
The PEOPLE of the State of New York, Appellant
v.
Bernhard GOETZ, Respondent
Court of Appeals of New York
68 N.Y.2d 96
July 8, 1986
Chief Judge WACHTLER.
A Grand Jury has indicted defendant on attempted murder, assault, and other charges for having shot and wounded four youths on a New York City subway train after one or two of the youths approached him and asked for \$5. The lower courts, concluding that the prosecutor’s charge to the Grand Jury on the defense of justification was erroneous, have dismissed the attempted murder, assault and weapons possession charges. We now reverse and reinstate all counts of the indictment.
I.
The precise circumstances of the incident giving rise to the charges against defendant are disputed, and ultimately it will be for a trial jury to determine what occurred. We feel it necessary, however, to provide some factual background to properly frame the legal issues before us. Accordingly, we have summarized the facts as they appear from the evidence before the Grand Jury. We stress, however, that we do not purport to reach any conclusions or holding as to exactly what transpired or whether defendant is blameworthy….
On Saturday afternoon, December 22, 1984, Troy Canty, Darryl Cabey, James Ramseur, and Barry Allen boarded an IRT express subway train in The Bronx and headed south toward lower Manhattan. The four youths rode together in the rear portion of the seventh car of the train. Two of the four, Ramseur and Cabey, had screwdrivers inside their coats, which they said were to be used to break into the coin boxes of video machines.
Defendant Bernhard Goetz boarded this subway train at 14th Street in Manhattan and sat down on a bench towards the rear section of the same car occupied by the four youths. Goetz was carrying an unlicensed .38 caliber pistol loaded with five rounds of ammunition in a waistband holster. The train left the 14th Street station and headed towards Chambers Street.
It appears from the evidence before the Grand Jury that Canty approached Goetz, possibly with Allen beside him, and stated “give me five dollars.” Neither Canty nor any of the other youths displayed a weapon. Goetz responded by standing up, pulling out his handgun and firing four shots in rapid succession. The first shot hit Canty in the chest; the second struck Allen in the back; the third went through Ramseur’s arm and into his left side; the fourth was fired at Cabey, who apparently was then standing in the corner of the car, but missed, deflecting instead off of a wall of the conductor’s cab. After Goetz briefly surveyed the scene around him, he fired another shot at Cabey, who then was sitting on the end bench of the car. The bullet entered the rear of Cabey’s side and severed his spinal cord.
All but two of the other passengers fled the car when, or immediately after, the shots were fired. The conductor, who had been in the next car, heard the shots and instructed the motorman to radio for emergency assistance. The conductor then went into the car where the shooting occurred and saw Goetz sitting on a bench, the injured youths lying on the floor or slumped against a seat, and two women who had apparently taken cover, also lying on the floor. Goetz told the conductor that the four youths had tried to rob him.
While the conductor was aiding the youths, Goetz headed towards the front of the car. The train had stopped just before the Chambers Street station and Goetz went between two of the cars, jumped onto the tracks and fled. Police and ambulance crews arrived at the scene shortly thereafter. Ramseur and Canty, initially listed in critical condition, have fully recovered. Cabey remains paralyzed, and has suffered some degree of brain damage.
On December 31, 1984, Goetz surrendered to police in Concord, New Hampshire, identifying himself as the gunman being sought for the subway shootings in New York nine days earlier. Later that day, after receiving Miranda warnings, he made two lengthy statements, both of which were tape recorded with his permission. In the statements, which are substantially similar, Goetz admitted that he had been illegally carrying a handgun in New York City for three years. He stated that he had first purchased a gun in 1981 after he had been injured in a mugging. Goetz also revealed that twice between 1981 and 1984 he had successfully warded off assailants simply by displaying the pistol.
According to Goetz’s statement, the first contact he had with the four youths came when Canty, sitting or lying on the bench across from him, asked “how are you,” to which he replied “fine.” Shortly thereafter, Canty, followed by one of the other youths, walked over to the defendant and stood to his left, while the other two youths remained to his right, in the corner of the subway car. Canty then said “give me five dollars.” Goetz stated that he knew from the smile on Canty’s face that they wanted to “play with me.” Although he was certain that none of the youths had a gun, he had a fear, based on prior experiences, of being “maimed.”
Goetz then established “a pattern of fire,” deciding specifically to fire from left to right. His stated intention at that point was to “murder [the four youths], to hurt them, to make them suffer as much as possible.” When Canty again requested money, Goetz stood up, drew his weapon, and began firing, aiming for the center of the body of each of the four. Goetz recalled that the first two he shot “tried to run through the crowd [but] they had nowhere to run”. Goetz then turned to his right to “go after the other two”. One of these two “tried to run through the wall of the train, but * * * he had nowhere to go.” The other youth (Cabey) “tried pretending that he wasn’t with [the others]” by standing still, holding on to one of the subway hand straps, and not looking at Goetz. Goetz nonetheless fired his fourth shot at him. He then ran back to the first two youths to make sure they had been “taken care of.” Seeing that they had both been shot, he spun back to check on the latter two. Goetz noticed that the youth who had been standing still was now sitting on a bench and seemed unhurt. As Goetz told the police, “I said ‘[y]ou seem to be all right, here’s another’ ”, and he then fired the shot which severed Cabey’s spinal cord. Goetz added that “if I was a little more under self-control * * * I would have put the barrel against his forehead and fired.” He also admitted that “if I had had more [bullets], I would have shot them again, and again, and again.”
II.
… On March 27, 1985, [a] Grand Jury filed a 10–count indictment, containing four charges of attempted murder, four charges of assault in the first degree, one charge of reckless endangerment in the first degree, and one charge of criminal possession of a weapon in the second degree…. Goetz was arraigned on this indictment on March 28, 1985, and it was consolidated with [an] earlier three-count indictment.
On October 14, 1985, Goetz moved to dismiss the charges … alleging, among other things, that the evidence before the second Grand Jury was not legally sufficient to establish the offenses charged, and that the prosecutor’s instructions to that Grand Jury on the defense of justification were erroneous and prejudicial to the defendant….
In an order dated January 21, 1986, Criminal Term granted Goetz’s motion to the extent that it dismissed all counts of the second indictment, other than the reckless endangerment charge, with leave to resubmit these charges to a third Grand Jury. The court … rejected Goetz’s contention that there was not legally sufficient evidence to support the charges [but held] that the prosecutor, in a supplemental charge elaborating upon the justification defense, had erroneously introduced an objective element into this defense by instructing the grand jurors to consider whether Goetz’s conduct was that of a “reasonable man in [Goetz’s] situation”. The court … concluded that the statutory test for whether the use of deadly force is justified to protect a person should be wholly subjective, focusing entirely on the defendant’s state of mind when he used such force. It concluded that dismissal was required for this error because the justification issue was at the heart of the case.
… On appeal by the People, a divided Appellate Division affirmed [the] dismissal of the charges. [The People appealed] to this court….
III.
Penal Law article 35 recognizes the defense of justification, which [permits] the use of force in defense of a person, encompassing both self-defense and defense of a third person. Penal Law § 35.15(1) sets forth the general principles governing all such uses of force: “[a] person may * * * use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person” (emphasis added).
Section 35.15(2) sets forth further limitations on these general principles with respect to the use of “deadly physical force”: “A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless (a) He reasonably believes that such other person is using or about to use deadly physical force or (b) He reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery” (emphasis added).
Thus, consistent with most justification provisions, Penal Law § 35.15 permits the use of deadly physical force only where requirements as to triggering conditions and the necessity of a particular response are met. As to the triggering conditions, the statute requires that the actor “reasonably believes” that another person either is using or about to use deadly physical force or is committing or attempting to commit one of certain enumerated felonies, including robbery. As to the need for the use of deadly physical force as a response, the statute requires that the actor “reasonably believes” that such force is necessary to avert the perceived threat.[1]
Because the evidence before the second Grand Jury included statements by Goetz that he acted to protect himself from being maimed or to avert a robbery, the prosecutor correctly chose to charge the justification defense in § 35.15 to the Grand Jury… When the prosecutor had completed his charge, one of the grand jurors asked for clarification of the term “reasonably believes.” The prosecutor responded by instructing the grand jurors that they were to consider the circumstances of the incident and determine “whether the defendant’s conduct was that of a reasonable man in the defendant’s situation.” It is this response by the prosecutor—and specifically his use of “a reasonable man”—which is the basis for the dismissal of the charges by the lower courts. As expressed repeatedly in the Appellate Division’s plurality opinion, because section 35.15 uses the term “he reasonably believes,” the appropriate test, according to that court, is whether a defendant’s beliefs and reactions were “reasonable to him.” Under that reading of the statute, a jury which believed a defendant’s testimony that he felt that his own actions were warranted and were reasonable would have to acquit him, regardless of what anyone else in defendant’s situation might have concluded. Such an interpretation defies the ordinary meaning and significance of the term “reasonably” in a statute, and misconstrues the clear intent of the Legislature … to retain an objective element as part of any provision authorizing the use of deadly physical force.
Penal statutes in New York have long codified the right recognized at common law to use deadly physical force, under appropriate circumstances, in self-defense… These provisions have never required that an actor’s belief as to the intention of another person to inflict serious injury be correct in order for the use of deadly force to be justified, but they have uniformly required that the belief comport with an objective notion of reasonableness….
In 1961 the Legislature established a Commission to undertake a complete revision of the Penal Law and the Criminal Code. The impetus for the decision to update the Penal Law came in part from the drafting of the Model Penal Code by the American Law Institute, as well as from the fact that the existing law was poorly organized and in many aspects antiquated…. The drafting of the general provisions of the new Penal Law, including the article on justification, was particularly influenced by the Model Penal Code…. While using the Model Penal Code provisions on justification as general guidelines, however, the drafters of the new Penal Law did not simply adopt them verbatim.
…[U]nder Model Penal Code § 3.04(2)(b), a defendant charged with murder (or attempted murder) need only show that he “believe[d] that [the use of deadly force] was necessary to protect himself against death, serious bodily injury, kidnapping or [forcible] sexual intercourse” to prevail on a self-defense claim [against a charge of intentional murder or attempted murder]…. If the defendant’s belief was wrong, and was recklessly, or negligently formed, however, he may be convicted of [a] homicide charge requiring only a reckless or negligent … criminal intent….
The drafters of the Model Penal Code recognized that the wholly subjective test set forth in section 3.04 differed from the existing law in most States by its omission of any requirement of reasonableness….
New York did not follow the Model Penal Code’s equation of a mistake as to the need to use deadly force with a mistake negating an element of a crime, choosing instead to use a single statutory section which would provide either a complete defense or no defense at all to a defendant charged with any crime involving the use of deadly force. The drafters of the new Penal Law adopted in large part the structure and content of Model Penal Code § 3.04, but, crucially, inserted the word “reasonably” before “believes”.
The plurality below agreed with defendant’s argument that the change in the statutory language from “reasonable ground,” used prior to 1965, to “he reasonably believes” in Penal Law § 35.15 evinced a legislative intent to conform to the subjective standard contained in Model Penal Code § 3.04. This argument, however, ignores the plain significance of the insertion of “reasonably.” Had the drafters of § 35.15 wanted to adopt a subjective standard, they could have simply used the language of [MPC] § 3.04. “Believes” by itself requires an honest or genuine belief by a defendant as to the need to use deadly force. Interpreting the statute to require only that the defendant’s belief was “reasonable to him,” as done by the plurality below, would hardly be different from requiring only a genuine belief; in either case, the defendant’s own perceptions could completely exonerate him from any criminal liability.
We cannot lightly impute to the Legislature an intent to fundamentally alter the principles of justification to allow the perpetrator of a serious crime to go free simply because that person believed his actions were reasonable and necessary to prevent some perceived harm. To completely exonerate such an individual, no matter how aberrational or bizarre his thought patterns, would allow citizens to set their own standards for the permissible use of force. It would also allow a legally competent defendant suffering from delusions to kill or perform acts of violence with impunity, contrary to fundamental principles of justice and criminal law.
We can only conclude that the Legislature retained a reasonableness requirement to avoid giving a license for such actions. The plurality’s interpretation, as the dissenters below recognized, excises the impact of the word “reasonably.” …
…The conclusion that § 35.15 retains an objective element to justify the use of deadly force is buttressed by the statements of its drafters. The executive director and counsel to the Commission which revised the Penal Law have stated that the provisions of the statute with respect to the use of deadly physical force largely conformed with the prior law, with the only changes they noted not being relevant here… Nowhere in the legislative history is there any indication that “reasonably believes” was designed to change the law on the use of deadly force or establish a subjective standard….
Statutes or rules of law requiring a person to act “reasonably” or to have a “reasonable belief” uniformly prescribe conduct meeting an objective standard measured with reference to how “a reasonable person” could have acted…
Goetz … argues that the introduction of an objective element will preclude a jury from considering factors such as the prior experiences of a given actor and thus, require it to make a determination of “reasonableness” without regard to the actual circumstances of a particular incident. This argument, however, falsely presupposes that an objective standard means that the background and other relevant characteristics of a particular actor must be ignored. To the contrary, we have frequently noted that a determination of reasonableness must be based on the “circumstances” facing a defendant or his “situation.” Such terms encompass more than the physical movements of the potential assailant. As just discussed, these terms include any relevant knowledge the defendant had about that person. They also necessarily bring in the physical attributes of all persons involved, including the defendant. Furthermore, the defendant’s circumstances encompass any prior experiences he had which could provide a reasonable basis for a belief that another person’s intentions were to injure or rob him or that the use of deadly force was necessary under the circumstances.
Accordingly, a jury should be instructed to consider this type of evidence in weighing the defendant’s actions. The jury must first determine whether the defendant had the requisite beliefs under § 35.15, that is, whether he believed deadly force was necessary to avert the imminent use of deadly force or the commission of one of the felonies enumerated therein. If the People do not prove beyond a reasonable doubt that he did not have such beliefs, then the jury must also consider whether these beliefs were reasonable. The jury would have to determine, in light of all the “circumstances,” as explicated above, if a reasonable person could have had these beliefs.
The prosecutor’s instruction to the second Grand Jury that it had to determine whether, under the circumstances, Goetz’s conduct was that of a reasonable man in his situation was thus essentially an accurate charge. It is true that the prosecutor did not elaborate on the meaning of “circumstances” or “situation” and inform the grand jurors that they could consider, for example, the prior experiences Goetz related in his statement to the police. We have held, however, that a Grand Jury need not be instructed on the law with the same degree of precision as the petit jury… This lesser standard is premised upon the different functions of the Grand Jury and the petit jury: the former determines whether sufficient evidence exists to accuse a person of a crime and thereby subject him to criminal prosecution; the latter ultimately determines the guilt or innocence of the accused, and may convict only where the People have proven his guilt beyond a reasonable doubt…
…[The prosecutor’s] instructions were not as complete as the court’s charge on justification [to a trial jury] should be, but they sufficiently apprised the Grand Jury of the existence and requirements of that defense to allow it to intelligently decide that there is sufficient evidence tending to disprove justification and necessitating a trial. The Grand Jury has indicted Goetz. It will now be for the petit jury to decide whether the prosecutor can prove beyond a reasonable doubt that Goetz’s reactions were unreasonable and therefore excessive.
Notes and questions on Goetz
1. Goetz was charged with attempted murder, under the same attempt statute that you saw in People v. Acosta (Chapter Eight) and the same murder statute that you saw in Patterson v. New York (Chapter Five) and People v. Russell (Chapter Nine). The state relied on the portion of the New York second degree murder statute that criminalized an intentional killing: “A person is guilty of murder in the second degree when … [w]ith intent to cause the death of another person, he causes the death of such person….” Notice that Goetz did not contest that he tried to cause the death of his victims, or that he had intent to kill them. Indeed, he testified that his intent was to “murder” them. That claim of intent illustrates the distinctive nature of an affirmative defense. Goetz could concede that his conduct and mental state met the definition of attempted murder in New York, but he argued that even so he should not be punished because his actions—which did violate the terms of the murder statute—were justified.
2. After the New York Court of Appeals reinstated the charges (in the opinion you’ve just read), this case went to trial, and the jury acquitted Goetz of all charges except weapons possession. He spent eight months in jail. The case and trial captured national attention; Goetz was called “the subway vigilante” and embraced by many who saw his actions as a necessary response to prevalent urban crime. The court’s opinion does not mention the races of the persons involved (Goetz was white, the four young men he shot were Black), but by one observer’s account, racialized imagery and fears loomed large in the trial. Professor George Fletcher observed the trial and later reported that neither the prosecution or defense explicitly mentioned race, but Goetz’s defense referred to the Black youths as “savages,” “predators,” and “vultures.” According to Fletcher,
The covert appeal to racial bias came out most dramatically in [a re-enactment] of the shooting… The nominal purpose of the demonstration was to show the way in which the bullet entered the body of each victim. The defense’s real purpose, however, was to recreate for the jury … the scene that Goetz encountered when four black passengers began to surround him. [Goetz’s attorney] asked the Guardian Angels [a volunteer crime patrol organization] to send him … four young black men to act as the props in the demonstration. In came the four young black Guardian Angels, fit and muscular, dressed in T-shirts, to play the parts…
George P. Fletcher, A Crime of Self-Defense: Bernhard Goetz and the Law on Trial 206-207 (1988).
Should the New York Court of Appeals have addressed race in its opinion, and if so, what should it have said? Was the defense attorney’s decision to stage a reenactment with young Black men problematic? If so, why? Some scholars have argued that the racial identity of parties operates (impermissibly, but unavoidably) as a kind of character evidence, because jurors are likely to draw conclusions about the parties on the basis of their racial identities. See Jasmine B. Gonzales Rose, Toward A Critical Race Theory of Evidence, 101 Minn. L. Rev. 2243, 2261-2268 (2017).
1. Darrell Cabey, who was shot in the spine and left paralyzed, sued Goetz in civil court and won a \$43 million judgment in 1996. Goetz declared bankruptcy, however, and Cabey was unable to collect the judgment. As one newspaper reported,
The jury’s decision was a stunning reversal for Goetz, 48, who was acquitted of attempted murder nine years ago in the same shooting and become a national symbol of urban rage and frustration.
But this time around—in a civil as opposed to a criminal trial, before a largely black jury in the Bronx instead of a largely white one in Manhattan, and at a time when crime here is on the downswing as opposed to the upswing—the six-person jury ruled against Goetz in about five hours.
It found that Goetz acted “recklessly” and “outrageously” in his attack on Darrell Cabey, now 30, who was left brain damaged and paralyzed from the chest down by one of Goetz’s bullets.
Malcolm Gladwell, Goetz Told to Pay \$43 Million, But Plaintiff to Get Little of That, South Florida Sun-Sentinel, April 24, 1996.
1. In the opinion you’ve read, the New York Court of Appeals is very focused on whether self-defense doctrine should use a subjective standard or an objective one to evaluate the defendant’s beliefs. Self-defense doctrines always ask whether the specific defendant actually believed that he faced a sufficient threat to warrant the use of deadly force, but do we also need to evaluate whether the defendant’s belief was “objectively” reasonable? The Court of Appeals found that the second inquiry was indeed necessary. How is “objective” reasonableness determined? Which factors do you think mattered most to the jury that acquitted Goetz?The newspaper article about the civil trial quoted in the previous note suggests that both the race of the jurors and the overall salience of crime as an issue could influence a jury’s decision. The decisionmakers who determine whether a defendant’s fears are “objectively” reasonable are, of course, themselves human beings with particular perspectives and particular experiences. Are average members of a jury – at least, average members of a mostly white jury – more likely to find fear to be “objectively” reasonable when the person who is feared is Black? Or does the legal language of objectivity successfully push decisionmakers to leave aside their own specific experiences and biases?
2. The basic framework of self-defense is consistent across most jurisdictions: a defendant who uses force and claims self-defense must show that a) a reasonable belief that b) there existed an imminent threat c) of great bodily harm to the defendant and d) the force used was necessary to avert the threat. Most jurisdictions require proportionality, meaning that the defendant’s use of force should not be more than is necessary to avert the threat. Beyond these basic requirements, jurisdictions vary on specific details such as what to do with defendants who start a fight that then escalates, or whether defendants have an obligation to retreat, if it is safe to do so, before using force. (It may seem that an option to retreat safely defeats a claim that force is “necessary,” but the concept of necessity is itself susceptible to multiple interpretations.) Under the New York self-defense statute, a defendant who is “the initial aggressor” cannot generally claim self-defense, except an aggressor who later withdraws from the conflict may regain the right to use force if the other person “persists in continuing the incident.” Notice also that the New York statute includes a duty to retreat under some circumstances. Was there any plausible argument that Goetz was the initial aggressor? Was there any plausible argument that Goetz had a duty to retreat before using deadly force?
3. The classification of a defendant as an aggressor is thus important, and often contentious. Many definitions of self-defense, like the New York statute, refer to aggressors but do not define the term. Some New York courts have said that the term “initial aggressor” in the New York statute means “the first person who uses or threatens the imminent use of offensive physical force.” But if the first use of force is non-deadly and is met with deadly force, then courts may treat “the first person in the encounter to use deadly physical force” as the initial aggressor. See People v. McWilliams, 852 N.Y.S.2d 523, 524 (N.Y. App. Div. 2008). It is fairly common for jury instructions to refer to an aggressor as “one who provokes the conflict,” and also common for courts to leave the term “aggressor” undefined and allow the jury to interpret the word on its own.
4. Recall the facts of People v. Russell, presented in Chapter Nine: two young men, Russell and Bekka, were crossing a courtyard when they encountered a third man, Burroughs. Someone started shooting, and soon all three were shooting. A bystander was killed. Each of the three men later claimed he had fired in self-defense. Why were the self-defense claims unsuccessful in that case? Apply N.Y. Penal Code § 35.15. Note: as a doctrinal matter, it is not the identity of the victim that makes a difference here. Most states provide that if a reasonable use of force harms someone other than the person threatening the defendant, the privilege to use force still protects the defendant from criminal liability for the injury to the third person. An unreasonable use of force, however, may result in criminal liability. See, e.g., People v. Morris, 491 N.Y.S.2d 860, 863 (N.Y. App. Div. 1985).
5. The Goetz court notes that the New York legislature chose not to follow the Model Penal Code’s precise approach to self-defense. The MPC definition of self-defense is reprinted below for reference, but it is not as influential as other portions of the MPC that we’ve considered. Only a few states have adopted this particular definition of self-defense. See Richard Singer, The Resurgence of Mens Rea: II – Honest but Unreasonable Mistake of Fact in Self-Defense, 28 B.C. L. Rev. 459, 505 (1987). The relevant text can be found in MPC § 3.04:
1.
(1) Use of Force Justifiable for Protection of the Person. Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
(2) Limitations on Justifying Necessity for Use of Force.
(a) The use of force is not justifiable under this Section:
(i) to resist an arrest that the actor knows is being made by a peace officer, although the arrest is unlawful; or
(ii) to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:
(A) the actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest; or
(B) the actor has been unlawfully dispossessed of the property and is making a re-entry or recaption justified by Section 3.06; or
(C) the actor believes that such force is necessary to protect himself against death or serious bodily injury.
(b) The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:
(i) the actor, with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or
(ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action that he has no duty to take, except that:
(A) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and
(B) a public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.
(c) Except as required by paragraphs (a) and (b) of this Subsection, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act that he has no legal duty to do or abstaining from any lawful action.
(3) Use of Confinement as Protective Force. The justification afforded by this Section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can, unless the person confined has been arrested on a charge of crime.
1. Model Penal Code § 3.04 could be read as a significant broadening of self-defense, since it allows a defense for any defendant who “believes” the use of force is immediately necessary, without an inquiry into whether the defendant’s belief is reasonable. However, the MPC is somewhat less favorable to defendants claiming self-defense than it may first appear. In a separate provision, MPC § 3.09, the MPC adopts what it sometimes called “imperfect self-defense.” On this approach, a defendant who has a genuine, but mistaken and unreasonable, belief that he needs to use force will have partial, but only partial, protection from criminal liability. If a defendant forms the belief that it is necessary to use deadly force against a purported attacker, but is reckless or negligent in forming that belief, he still may be convicted of a crime for which recklessness or negligence is a sufficient mens rea. Consider carefully the text of MPC § 3.09(2):
Model Penal Code § 3.09
(1) The justification afforded by Sections 3.04 to 3.07, inclusive, is unavailable when:
(a) the actor’s belief in the unlawfulness of the force or conduct against which he employs protective force or his belief in the lawfulness of an arrest that he endeavors to effect by force is erroneous; and
(b) his error is due to ignorance or mistake as to the provisions of the Code, any other provision of the criminal law or the law governing the legality of an arrest or search.
(2) When the actor believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under Sections 3.03 to 3.08 but the actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief that is material to the justifiability of his use of force, the justification afforded by those Sections is unavailable in a prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability.
(3) When the actor is justified under Sections 3.03 to 3.08 in using force upon or toward the person of another but he recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded by those Sections is unavailable in a prosecution for such recklessness or negligence towards innocent persons.
Check Your Understanding (10-1)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
As should be clear by now, self-defense law is largely focused on beliefs, so we are again in the world of mental states. But in most jurisdictions, a self-defense claim requires not only a showing that the defendant believed force was necessary, but also a showing that the defendant’s belief was reasonable (even if mistaken). Goetz raises questions about whether and how race influences perceptions of threat, and judgments of reasonableness. Another line of self-defense doctrine grapples with killings that follow domestic violence; here the question is whether gender influences either perceptions of threat or judgments about the reasonableness of those perceptions. State v. Gartland, below, illustrates this area of self-defense law. New Jersey’s self-defense statute is followed by the state supreme court opinion.
N.J. S.A. § 2C:3-4. Use of force in self-protection [as of 1997; since amended]
a. …[T]he use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
b. Limitations on justifying necessity for use of force.
(2) The use of deadly force is not justifiable under this section unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm; nor is it justifiable if:
(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or
(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:
(i) The actor is not obliged to retreat from his dwelling, unless he was the initial aggressor or is assailed by another person whose dwelling the actor knows it to be; and
(ii) A public officer justified in using force in the performance of his duties … or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.
c. (1) Notwithstanding [other statutory provisions], the use of force or deadly force upon or toward an intruder who is unlawfully in a dwelling is justifiable when the actor reasonably believes that the force is immediately necessary for the purpose of protecting himself or other persons in the dwelling against the use of unlawful force by the intruder on the present occasion.
(2) A reasonable belief exists when the actor, to protect himself or a third person, was in his own dwelling at the time of the offense or was privileged to be thereon and the encounter between the actor and intruder was sudden and unexpected, compelling the actor to act instantly and:
(a) The actor reasonably believed that the intruder would inflict personal injury upon the actor or others in the dwelling; or
(b) The actor demanded that the intruder disarm, surrender or withdraw, and the intruder refused to do so.
(3) An actor employing protective force may estimate the necessity of using force when the force is used, without retreating, surrendering possession, withdrawing or doing any other act which he has no legal duty to do or abstaining from any lawful action.
STATE of New Jersey, Plaintiff–Respondent
v.
Ellen GARTLAND, Defendant–Appellant
Supreme Court of New Jersey
694 A.2d 564
Decided June 19, 1997
PER CURIAM.
This appeal concerns the statutory duty to retreat before resorting to the use of deadly force in self-defense. …
I
The killing occurred on February 8, 1993. The jury heard evidence of long-standing physical and emotional abuse inflicted by the victim on defendant. Witnesses portrayed John Gartland as a violent and threatening husband obsessed with jealousy.
On the afternoon of the killing, the Gartlands … returned home at about 5:00 p.m., [and] a neighbor heard Mr. Gartland (John) threaten his wife. Other neighbors heard similar abuse and threats. The argument continued when John could not find the remote control for the television and accused Ellen of hiding it. Angered, he left the home. When he returned, he renewed the argument about the remote control. Ellen asked him to leave her alone and went upstairs to her bedroom. For over ten years, she and her husband had had separate bedrooms.
Previously, John had left her alone in this room. On this evening, he followed her into her bedroom. She told him to go to bed and to leave her alone. He approached her, threatening to strike her. One of them, the parties dispute which, said “I’m going to hurt you” as he approached her.
Ellen took her son’s hunting shotgun from her bedroom closet. She pointed it at her husband and told him to stop. He said, “You’re not going to do [anything] to me because you, bitch, I’m going to kill you.” He lunged at her with his fists clenched. She pulled the trigger. The shotgun blast hit her husband. He stepped into the hallway and fell.
Ellen dropped the gun, called an operator, and asked for an ambulance, saying that she had just shot her husband. She then called her son as well as John Gartland’s son. She told the responding officers that she had feared for her life. She said that she would never forget the look on his face and that he approached her looking “like a devil.”
At trial, the jury had asked twice during its deliberations for clarification of the court’s charge on self-defense. On both occasions the trial court repeated its initial instructions. The instruction never specifically apprised the jury that it could consider the seventeen years of spousal abuse suffered by Mrs. Gartland in determining whether she honestly and reasonably believed that deadly force was necessary to protect herself against her husband. The trial court used the Model Jury Charge and told the jury that “[a] reasonable belief is one which is to be held by a person of ordinary prudence and intelligence situated as Mrs. Gartland was on February 8, 1993.”
Prior to the charge, defense counsel objected to the court’s intent to charge that Ellen had a duty to retreat before resorting to deadly force. Counsel renewed his objection immediately after the charge. Before the first recharge on self-defense, defense counsel again objected. He noted that because Ellen had been in her own room, one that her husband never occupied, he was not a cohabitant and under the law she had no duty to retreat from her own separate dwelling. The trial court ruled that “under the statute, there was a duty to retreat.” …
The jury convicted Mrs. Gartland of reckless manslaughter. Two jurors later contacted the court describing confusion and indecision in their deliberations. After denying a motion for a new trial, the court sentenced Mrs. Gartland to a five-year term with a mandatory three-years imprisonment under the Graves Act. She was freed on bail pending appeal. The Appellate Division affirmed the conviction. ….
II
Should the appeal be dismissed because defendant died before her appeal could be heard by this Court?
… Unlike the federal constitution, the New Jersey Constitution does not confine the exercise of the judicial power to actual cases and controversies. Our courts will entertain a case that has become moot when the issue is of significant public importance and is likely to recur. We decided the right of one to die even though her death had occurred before we could decide her appeal. …
Our Legislature has made a strong commitment to the eradication of domestic violence. To the extent that this decision addresses concerns in this area, it is worth the judicial effort. … [I]mportant interests of the defendant or society at large may be at stake if an erroneous conviction is left standing. We find those important interests present here.
III
Did the trial court err in failing to instruct the jury that defendant had no duty to retreat if defendant’s bedroom functioned as a separate dwelling and that her husband was an intruder into that separate room within the house that they shared?
New Jersey is among the minority of jurisdictions that impose a duty of retreat on a woman attacked by her cohabitant spouse. The New Jersey Code of Criminal Justice contains carefully articulated standards for determining when the use of force against another is justified. The drafters of our Code originally approached the concept of justification in terms of the subjective attitudes of the criminal actor. However, in the course of legislative modifications the self-defense provisions of the Code were altered to reestablish objective standards of self-defense…. Concerning deadly force, the Code provides: “The use of deadly force is not justifiable under this section unless the actor reasonably believes that such force is necessary to protect [the actor] against death or serious bodily harm ….” N.J.S.A. 2C:3–4b(2). Even if deadly force is permissible, the actor still has the duty to retreat from the scene if the actor can do so safely. N.J.S.A. 2C:3–4b(2)(b). One exception to this duty to retreat is if the actor is in his or her own home at the time of the attack (the so-called “castle doctrine”), unless the attacker is a cohabitant. N.J.S.A. 2C:3–4b(2)(b)(i) states that “[t]he actor is not obliged to retreat from [the] dwelling, unless [the actor] was the initial aggressor or is assailed in [the actor’s own] dwelling by another person whose dwelling the actor knows it to be….” N.J.S.A. 2C:3–4c provides special rules for the use of deadly force on an intruder into one’s dwelling. For example, under this provision, deadly force may be used against an intruder to counter any level of unlawful force threatened by the intruder.
The Public Defender argues that it is ironic that Ellen Gartland could have used the shotgun against a burglar who intended to do her no serious harm but was precluded from using the same force against the true threat in her life, her husband. Instead, the law requires her to flee from her bedroom, which she had described as the only sanctuary in her chaos-filled home.
The retreat doctrine is one of several related legal doctrines affecting battered women as criminal defendants. The male pronouns used in the Code reflect a history of self-defense that is derived from a male model.[2]
Under the common law regime, even if faced with immediate danger of death or great bodily harm, an individual could use only equal force to repel the danger. The doctrine of equal force, developed on a prototype of two males of equal size and strength, held that, if attacked without a deadly weapon, one could not respond with a deadly weapon. This doctrine obviously disadvantaged women, who are generally smaller and lack the same upper-body strength as men.
Traditional common law self-defense imposes no duty to retreat, except for co-occupants of the same house. Given that most men are assaulted and killed outside their homes by strangers, while most women are assaulted and killed within their homes by male intimates, this doctrine also disadvantaged women.
[Marina Angel, Criminal Law And Women: Giving The Abused Woman Who Kills A Jury Of Her Peers Who Appreciate Trifles, 33 Am. Crim. L.Rev. 229, 320 (1996).]
… These are grave concerns. When the drafters of our Code of Criminal Justice commenced their work in 1971, the public was not fully aware of the epidemic of domestic violence. Knowledge of the problem, however, was more widespread at the time of the adoption of the Code in 1979. Legislative activity in the field of domestic abuse was already underway. For example, New Jersey had adopted the Prevention of Domestic Violence Act [later repealed] and the Shelters for Victims of Domestic Violence Act. However, there is no evidence that the Legislature specifically considered the loophole in the castle doctrine. As presently structured, the Code of Criminal Justice requires that a cohabitant who can safely leave the home to avoid violence should do so before resorting to deadly force. We have invariably adhered to the Code’s concepts of self-defense.
… There is no … basis for departing from the language of the Code…. Although we find present the statutory duty to retreat, we commend to the Legislature consideration of the application of the retreat doctrine in the case of a spouse battered in her own home. There are arguments to be made on each side of the issue.
… That leaves for resolution whether John Gartland could be considered a cohabitant of Ellen’s bedroom. Put the other way, the question is whether the upstairs bedroom in which Ellen slept was a separate dwelling. It is a close question on this record but we agree with the courts below that the bedroom was not a separate dwelling….
Defendant emphasizes that the Prevention of Domestic Violence Act implicitly recognizes the concept of a private dwelling within a larger home by authorizing the issuance of in-house restraining orders in its attempt to prevent spousal attacks….
It is true that one building may have separate apartments. However, the idea of a dwelling is that one has an “exclusive right to occupy” a portion of a building…. In this case, there is simply no evidence that the door to the bedroom had normally been kept locked or that John Gartland did not generally have access to the room. Defendant merely testified that because of sexual dysfunction, the couple slept in separate rooms. We cannot say that Ellen had the exclusive right to occupy this room. Hence, we agree, on this record, that the court correctly charged the statutory duty to retreat.
IV
Did the trial court err in failing specifically to instruct the jury that the evidence that defendant was abused by the decedent could be considered in assessing her claim of self-defense?
…[This Court has recognized that] evidence of prior abuse has the potential to confuse the jury and that expert testimony is useful to clarify and refute common myths and misconceptions about battered women…. Like the elements of passion-provocation manslaughter, the elements of self-defense contain subjective and objective factors that focus, respectively, on the sincerity and reasonableness of the defendant’s beliefs. Thus, defendant argues that because evidence of prior abuse is relevant to the issue of self-defense and because evidence of prior abuse is potentially confusing, it follows that the jury must be properly instructed concerning how to consider and give effect to such evidence in assessing a claim of self-defense. The trial court specifically instructed the jury to consider the evidence of prior abuse in determining the question of provocation. However, it did not specifically instruct the jury to consider evidence of prior abuse in determining the question of self-defense.
We agree that a better charge would have instructed the jury to consider the history of prior abuse in assessing the honesty and reasonableness of defendant’s belief in the need to use deadly force. Our courts have always admitted evidence of a victim’s violent character as relevant to a claim of self-defense so long as the defendant had knowledge of the dangerous and violent character of the victim.
The issue arises in this case as one of plain error and the question is whether the absence of the specific instruction was such that it was clearly capable of producing an unjust result. We have often emphasized that instructions to a jury are to be examined as a whole. … Taken as a whole, the instruction could not be understood to foreclose the jury’s full and appropriate consideration of the prior abuse in assessing the honesty and reasonableness of defendant’s belief.
The possibility that the jury might not have considered the prior abuse in assessing the self-defense claim appears highly attenuated in this case. A major focus of the opening and closing remarks of defense counsel was that the jury could and should consider the long-standing abuse of defendant by her husband in assessing her claim of self-defense. In his opening remarks defense counsel said:
Now this is not a case, ladies and gentlemen, where a woman who claimed to have been abused for years walked into the bedroom one night and shot her sleeping husband or set the bed on fire when he was sleeping because she couldn’t take it anymore, that is not this case. This is self-defense. If Mrs. Gartland hadn’t acted to defend herself that night Johnny Gartland would be on trial for murder right now, that is what the case is all about.
So, yes, there are always many dynamics at work in a case like this and you’re going to have to try to understand some of them, but in the end what is the single most important reason that the evidence in this case will show as to why it’s important that Johnny Gartland beat up Ellen Gartland and abused her for so many years? You know why? Because on February 8, 1993, she knew what type of violence he was capable of inflicting against her and that’s why it’s important. She had every reason in the world to be afraid of him because she knew what he had done to her before. She knew what he was capable of doing and she knew the imminency of the threats, and she saw the look when he came in the bedroom to hit her. [Emphasis added.]
In his summation, he repeated this theme:
You see what is important, ladies and gentlemen, about the history and the context of this case is that she knew he was capable of doing serious injury to her because he had done it before. She knew he was capable of beating the hell out of her…. Ladies and gentlemen, in the end the history is important because that it why Ellen knew that she had a good reason to be afraid. She knew that he was capable of hurting her very badly…. He was known to be violent and abusive when he was drunk, that he had beaten his wife on occasions over a seventeen-year marriage…. [Emphasis added.]
The court’s instructions did not foreclose the jury’s consideration of that prior abuse; nor were its instructions so erroneous as to confuse or mislead the jury in its consideration of self-defense. The instructions gave the members of the jury an opportunity to consider fully whether an honest and reasonable belief in the necessity to use deadly force was present. The trial court explicitly told the jurors to consider passion-provocation in the context of knowing or purposeful murder. It also told the jurors that they could not find the defendant guilty of murder or any of the lesser-included offenses if they had a reasonable doubt as to whether or not the defendant had killed her victim in the honest and reasonable belief that the use of deadly force was necessary on the occasion.
V
We now turn to consider other aspects of this case that have been neither raised nor argued by the parties, that would have been grounds for retrial in the case of a living defendant.
In a long series of cases, we have held that an essential ingredient to a fair trial is that adequate and understandable instructions be given to the jury. We have regularly insisted that courts give content to statutory language in their charges to juries….
The instructions in this case were largely devoid of reference to the specific circumstances of the case. As noted, the trial court instructed the jury that if Mrs. Gartland “knew that she could avoid the necessity of using deadly force by retreating from that house, providing … [that] she could do so with complete safety, then the defense is not available to her.” We intend no criticism of the trial court because neither party requested a charge tailored to the facts. However, an abstract charge on the duty to retreat could only have been confusing in the circumstances of this case. Exactly where could she retreat? As we understand the record, there was no other way out of the bedroom other than the doorway where her assailant stood. The charge should have asked whether, armed with a weapon, she could have safely made her way out of the bedroom door without threat of serious bodily injury to herself. In the similar circumstances of State v. Thomas (Ohio 1997) a woman trapped in her trailer retreated to the bathroom. Unable to escape, she ran to a closet and took out a gun. She fired two warning shots and even after being shot her assailant continued to threaten her. The concurring judge asked, “[h]ad the defendant gotten around [her cohabitant] to the door of the small trailer, would her attempt to escape the altercation have increased the risk of her death? Would [the cohabitant] have become further enraged and tried to kill her?” These are the circumstances that a jury must evaluate. One of the problems in applying the retreat doctrine to the case of a battered woman is that the jurors may confuse the question of leaving the abusive partner with the duty to retreat on the occasion. Among the many myths concerning battered women is the belief “that they are masochistic and actually enjoy their beatings, that they purposely provoke their husbands into violent behavior, and, most critically … that women who remain in battering relationships are free to leave their abusers at any time.”
The charge on self-defense should also have been tailored to the circumstances of the case. In State v. Wanrow, 559 P.2d 548 (1977), the Washington Supreme Court recognized that its traditional self-defense standard failed to account for the perspective of abused women. Any limitation of the jury’s consideration of the surrounding acts and circumstances to those occurring at or immediately before the killing would be an erroneous statement of the applicable law. The Washington court held that a battered woman was entitled to have the jury consider her actions in the light of her own perceptions of the situation, including those perceptions that were the product of our nation’s unfortunate history of sex discrimination. At a minimum, the jury in Ellen Gartland’s case should have been asked to consider whether, if it found such to be the case, a reasonable woman who had been the victim of years of domestic violence would have reasonably perceived on this occasion that the use of deadly force was necessary to protect herself from serious bodily injury.
In another context, the failure to relate to the facts of the case the duty to retreat and right of self-defense might not have cut so mortally into a defendant’s ability to maintain a defense on the merits. However, the persistent stereotyping of the victims of domestic violence requires special concern. Both partners to the domestic tragedy are now deceased. Although we cannot fully right past wrongs, we can correct errors in the charge that were clearly capable of producing an unjust result.
The judgment of the Appellate Division is reversed and the conviction of manslaughter is set aside.
Notes and questions on Gartland
1. Ellen Gartland had passed away between the time that she was convicted of manslaughter and the time that the New Jersey Supreme Court heard the appeal to her conviction. The state court took the case even though defendant had died, on the grounds that the case raised issues “of significant public importance” that are “likely to recur.” What were those issues of public importance?
2. After hearing the deceased defendant’s appeal, the state court then rejected the defense’s two main arguments. What were those arguments, and why did the court reject them? Finally, in Part V, the court turns to “other aspects of this case that have been neither raised nor argued by the parties.” What are those aspects? Why does the court eventually reverse Gartland’s conviction?
3. Be sure to understand the castle doctrine, and the “loophole” in it referred to by the Gartland court. The castle doctrine is essentially an exception to a duty to retreat. Many states that impose a duty to retreat provide an exception to that duty for a defendant who is threatened in his or her own home. (The name of the doctrine comes from the phrase, “A man’s home is his castle,” and reflects a view that no one should have to retreat from an attacker in one’s own “castle.”) But under the New Jersey law applicable at the time of Gartland, the castle doctrine was itself subject to an exception: if the attacker also lives in the same home, then the duty to retreat apparently arises again. Even so, the duty to retreat (rather than use force in self-defense) applies only when one can retreat “with complete safety.” Do the reported facts suggest an option of safe retreat here? (In 1999, not long after Gartland, the state legislature amended the statute to remove the requirement of retreat from a cohabitant.)
4. As Gartland’s public defender pointed out, the New Jersey statute gave Ellen Gartland broader leeway to use force against an intruder who did not threaten deadly force than against her husband who had directly threatened to kill her. Consider carefully the terms of N.J.S.A. § 2C:3-4c. This section provides that the use of deadly force against an intruder is justifiable “when the actor reasonably believes that the force is immediately necessary for the purpose of protecting himself or others … against the use of unlawful force by the intruder on the present occasion.” That much is consistent with general self-defense doctrine. But then the statute goes on to state the necessary reasonable belief exists if the defendant had any fear of personal injury, or the defendant “demanded that the intruder disarm, surrender, or withdraw, and the intruder refused to do so.”
5. The National Rifle Association has had a significant influence on American self-defense law. According to one study, since 2005 more than 40 states have enacted or proposed new legislation that broadens the right to use deadly force. These new laws, “conceived and advocated by the National Rifle Association, … purport to change existing self-defense law in one or both of the following ways: First, they permit a home resident to kill an intruder by presuming rather than requiring proof of reasonable fear of death or serious bodily harm; second, they reject a general duty to retreat from attack, even when retreat is possible, not only in the home, but also in public space.” Jeannie Suk, The True Woman: Scenes from the Law of Self-Defense, 31 Harv. J. L. & Gender 237, 238 (2008). The latter type of law is often labeled a “Stand Your Ground” law. Both types of provisions are sometimes championed as efforts to help women protect themselves from violence. Critics argue that in practice, the effect of these legal changes has been “the normalization and promotion of (often white) male violence in an increasing number of scenarios,” rather than any greater protection for women who are subjected to physical abuse. See, e.g., Mary Anne Franks, Real Men Advance, Real Women Retreat: Stand Your Ground, Battered Women, 69 Univ. Miami L. Rev. 1099 (2014).
6. As suggested by the quotation from Professor Franks in the previous note, criticisms of Stand Your Ground laws have focused at least as much on race as on gender. By giving defendants greater leeway to respond to perceived threats with force (even when retreat is an option), Stand Your Ground laws may exacerbate the effects of racial bias in threat perceptions. So argues one scholar: even in a state without a Stand Your Ground law, a white defendant is more than twice as likely to succeed with a self-defense claim if the victim of the force was Black rather than white. In states that do have Stand Your Ground Laws, a white defendant is more than three times as likely to succeed with a self-defense claim if the victim of the force was Black rather than white. See Jasmine B. Gonzales Rose, Toward A Critical Race Theory of Evidence, 101 Minn. L. Rev. 2243, 2267-2268 (2017).
7. Some courts and commentators frame debates about self-defense law in terms of objectivity (usually, reasonable person standards) and subjectivity (standards that are more attentive to the particular experiences of the individual defendant). You saw this debate in People v. Goetz, and here again in Gartland. Notice that the objectivity vs. subjectivity framing assumes that objectivity is an option – that is, it assumes that legal decisionmakers can develop and apply legal standards without taking their own subjective perspectives into account. Against that assumption, one study of self-defense cases suggested that the “objective” elements of self-defense doctrine are actually vehicles for decisionmakers to shape outcomes based on the details that the individual decisionmaker sees as important.
The problem with the law of self-defense is neither new nor limited to the battered woman; it is as old and as persistent as the law’s search for an objective meaning for necessity. Based on a survey of twenty years of self-defense cases, I sought to “test” claims of objectivity by focusing on what purports to be one of the most objective of self-defense rules: the requirement that the threat must have been “imminent” for the defendant’s response to have been permissible. …
My survey shows that the important question is not whether the law has become too soft or subjectified but what we mean by its objectivity. The case law shows that imminence has many meanings; indeed, imminence often operates as a proxy for any number of other self-defense factors—for example, strength of threat, retreat, proportionality, and aggression. Perhaps more importantly, my survey shows that the conventional image of imminence may be incorrect. It is widely believed by scholars that the “problem” of imminence is one of too much time between the threat and the killing. If my survey is right, however, most judicial opinions raising imminence do not involve long periods of time between the threat and the killing. They are cases of weak threats and extended fights, cases in which the defendant is struggling with the victim, is faced with a gun, believes that the victim is advancing, or hears a stranger in the woods outside his home. This should confound traditional doctrinal understandings of the term “imminence” (which presume imminence as relevant only in nonconfrontational “waiting” cases). Indeed, it presents strong evidence supporting my hypothesis—that imminence carries undeclared meanings.
This has important implications for both the law of self-defense as well as our image of the problem of battered women. The law of self-defense, if I am right, is far from as settled or coherent as it is assumed to be; its meaning and theory remain, in my view, largely unresolved. What seems so objective—the status quo—turns out to be a good deal more complex and contingent than has been assumed.
V.F. Nourse, Self-Defense and Subjectivity, 68 U. Chi. L. Rev. 1235, 1236-1237 (2001).
Check Your Understanding (10-2)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
From Justification to Excuse: Necessity and Duress
[The relevant statutory provision is included in footnote 1 in the opinion below.]
UNITED STATES, Petitioner
v.
Clifford BAILEY et al.
Supreme Court of the United States
444 U.S. 394
Decided Jan. 21, 1980
Mr. Justice REHNQUIST delivered the opinion of the Court.
In the early morning hours of August 26, 1976, respondents Clifford Bailey, James T. Cogdell, Ronald C. Cooley, and Ralph Walker, federal prisoners at the District of Columbia jail, crawled through a window from which a bar had been removed, slid down a knotted bedsheet, and escaped from custody. Federal authorities recaptured them after they had remained at large for a period of time ranging from one month to three and one-half months. Upon their apprehension, they were charged with violating 18 U.S.C. § 751(a), which governs escape from federal custody.[3] At their trials, each of the respondents adduced or offered to adduce evidence as to various conditions and events at the District of Columbia jail, but each was convicted by the jury. The Court of Appeals for the District of Columbia Circuit reversed the convictions by a divided vote…. We granted certiorari, and now reverse the judgments of the Court of Appeals.
In reaching our conclusion, we must decide the state of mind necessary for violation of § 751(a) and the elements that constitute defenses such as duress and necessity. In explaining the reasons for our decision, we find ourselves in a position akin to that of the mother crab who is trying to teach her progeny to walk in a straight line, and finally in desperation exclaims: “Don’t do as I do, do as I say.” The Act of Congress we construe consists of one sentence set forth in the margin, n. 1, supra ; our own pragmatic estimate … is that “in general, trials for violations of § 751(a) should be simple affairs.” Yet we have written, reluctantly but we believe necessarily, a somewhat lengthy opinion supporting our conclusion, because in enacting the Federal Criminal Code Congress legislated in the light of a long history of case law that is frequently relevant in fleshing out the bare bones of a crime that Congress may have proscribed in a single sentence. See Morissette v. United States (1952).
I
All respondents requested jury trials and were initially scheduled to be tried jointly. At the last minute, however, respondent Cogdell secured a severance. Because the District Court refused to submit to the jury any instructions on respondents’ defense of duress or necessity and did not charge the jury that escape was a continuing offense, we must examine in some detail the evidence brought out at trial.
The prosecution’s case in chief against Bailey, Cooley, and Walker was brief. The Government introduced evidence that each of the respondents was in federal custody on August 26, 1976, that they had disappeared, apparently through a cell window, at approximately 5:35 a. m. on that date, and that they had been apprehended individually between September 27 and December 13, 1976.
Respondents’ defense of duress or necessity centered on the conditions in the jail during the months of June, July, and August 1976, and on various threats and beatings directed at them during that period. In describing the conditions at the jail, they introduced evidence of frequent fires in “Northeast One,” the maximum-security cellblock occupied by respondents prior to their escape. Construed in the light most favorable to them, this evidence demonstrated that the inmates of Northeast One, and on occasion the guards in that unit, set fire to trash, bedding, and other objects thrown from the cells. According to the inmates, the guards simply allowed the fires to burn until they went out. Although the fires apparently were confined to small areas and posed no substantial threat of spreading through the complex, poor ventilation caused smoke to collect and linger in the cellblock.
Respondents Cooley and Bailey also introduced testimony that the guards at the jail had subjected them to beatings and to threats of death. Walker attempted to prove that he was an epileptic and had received inadequate medical attention for his seizures.
Consistently during the trial, the District Court stressed that, to sustain their defenses, respondents would have to introduce some evidence that they attempted to surrender or engaged in equivalent conduct once they had freed themselves from the conditions they described. But the court waited for such evidence in vain. Respondent Cooley, who had eluded the authorities for one month, testified that his “people” had tried to contact the authorities, but “never got in touch with anybody.” He also suggested that someone had told his sister that the Federal Bureau of Investigation would kill him when he was apprehended.
Respondent Bailey, who was apprehended on November 19, 1976, told a similar story. He stated that he “had the jail officials called several times,” but did not turn himself in because “I would still be under the threats of death.” Like Cooley, Bailey testified that “the FBI was telling my people that they was going to shoot me.”
Only respondent Walker suggested that he had attempted to negotiate a surrender. Like Cooley and Bailey, Walker testified that the FBI had told his “people” that they would kill him when they recaptured him. Nevertheless, according to Walker, he called the FBI three times and spoke with an agent whose name he could not remember. That agent allegedly assured him that the FBI would not harm him, but was unable to promise that Walker would not be returned to the D.C. jail. [The FBI disputed that Walker contacted them at all.] Walker testified that he last called the FBI in mid-October. He was finally apprehended on December 13, 1976.
At the close of all the evidence, the District Court rejected respondents’ proffered instruction on duress as a defense to prison escape.[4] The court ruled that respondents had failed as a matter of law to present evidence sufficient to support such a defense because they had not turned themselves in after they had escaped the allegedly coercive conditions. After receiving instructions to disregard the evidence of the conditions in the jail, the jury convicted Bailey, Cooley, and Walker of violating § 751(a).
Two months later, respondent Cogdell came to trial before the same District Judge who had presided over the trial of his co-respondents…. [T]he District Court ruled that Cogdell could not present evidence of conditions at the jail. Cogdell subsequently chose not to testify on his own behalf, and was convicted by the jury of violating § 751(a).
By a divided vote, the Court of Appeals reversed each respondent’s conviction and remanded for new trials. The majority concluded that the District Court should have allowed the jury to consider the evidence of coercive conditions in determining whether the respondents had formulated the requisite intent to sustain a conviction under § 751(a). According to the majority, § 751(a) required the prosecution to prove that a particular defendant left federal custody voluntarily, without permission, and “with an intent to avoid confinement.” The majority then defined the word “confinement” as encompassing only the “normal aspects” of punishment prescribed by our legal system. Thus, where a prisoner escapes in order to avoid “non-confinement” conditions such as beatings or homosexual attacks, he would not necessarily have the requisite intent to sustain a conviction under § 751(a)…
The dissenting judge objected to what he characterized as a revolutionary reinterpretation of criminal law by the majority. He argued that the common-law crime of escape had traditionally required only “general intent,” a mental state no more sophisticated than an “intent to go beyond permitted limits.”…
II
… In the present case, we must examine both the mental element, or mens rea, required for conviction under § 751(a) and the circumstances under which the “evil-doing hand” can avoid liability under that section because coercive conditions or necessity negates a conclusion of guilt even though the necessary mens rea was present.
A
…As relevant to the charges against Bailey, Cooley, and Walker, § 751(a) required the prosecution to prove (1) that they had been in the custody of the Attorney General, (2) as the result of a conviction, and (3) that they had escaped from that custody. As for the charges against respondent Cogdell, § 751(a) required the same proof, with the exception that his confinement was based upon an arrest for a felony rather than a prior conviction. Although § 751(a) does not define the term “escape,” courts and commentators are in general agreement that it means absenting oneself from custody without permission.
Respondents have not challenged the District Court’s instructions on the first two elements of the crime defined by § 751(a). It is undisputed that, on August 26, 1976, respondents were in the custody of the Attorney General as the result of either arrest on charges of felony or conviction. As for the element of “escape,” we need not decide whether a person could be convicted on evidence of recklessness or negligence with respect to the limits on his freedom. A court may someday confront a case where an escapee did not know, but should have known, that he was exceeding the bounds of his confinement or that he was leaving without permission. Here, the District Court clearly instructed the juries that the prosecution bore the burden of proving that respondents “knowingly committed an act which the law makes a crime”…. At a minimum, the juries had to find that respondents knew they were leaving the jail and that they knew they were doing so without authorization. The sufficiency of the evidence to support the juries’ verdicts under this charge has never seriously been questioned, nor could it be.
The majority of the Court of Appeals, however, imposed the added burden on the prosecution to prove as a part of its case in chief that respondents acted “with an intent to avoid confinement.” While, for the reasons noted above, the word “intent” is quite ambiguous, the majority left little doubt that it was requiring the Government to prove that the respondents acted with the purpose—that is, the conscious objective—of leaving the jail without authorization. In a footnote explaining their holding, for example, the majority specified that an escapee did not act with the requisite intent if he escaped in order to avoid “ ‘non-confinement’ conditions” as opposed to “normal aspects of ‘confinement.’ ”
We find the majority’s position quite unsupportable. Nothing in the language or legislative history of § 751(a) indicates that Congress intended to require either such a heightened standard of culpability or such a narrow definition of confinement. As we stated earlier, the cases have generally held that, except in narrow classes of offenses, proof that the defendant acted knowingly is sufficient to support a conviction. Accordingly, we hold that the prosecution fulfills its burden under § 751(a) if it demonstrates that an escapee knew his actions would result in his leaving physical confinement without permission….
B
Respondents also contend that they are entitled to a new trial because they presented (or, in Cogdell’s case, could have presented) sufficient evidence of duress or necessity to submit such a defense to the jury….
Common law historically distinguished between the defenses of duress and necessity. Duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law. While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils. Thus, where A destroyed a dike because B threatened to kill him if he did not, A would argue that he acted under duress, whereas if A destroyed the dike in order to protect more valuable property from flooding, A could claim a defense of necessity.
Modern cases have tended to blur the distinction between duress and necessity. In the court below, the majority discarded the labels “duress” and “necessity,” choosing instead to examine the policies underlying the traditional defenses. In particular, the majority felt that the defenses were designed to spare a person from punishment if he acted “under threats or conditions that a person of ordinary firmness would have been unable to resist,” or if he reasonably believed that criminal action “was necessary to avoid a harm more serious than that sought to be prevented by the statute defining the offense.” The Model Penal Code redefines the defenses along similar lines. See Model Penal Code § 2.09 (duress) and § 3.02 (choice of evils).
We need not speculate now, however, on the precise contours of whatever defenses of duress or necessity are available against charges brought under § 751(a). Under any definition of these defenses one principle remains constant: if there was a reasonable, legal alternative to violating the law, “a chance both to refuse to do the criminal act and also to avoid the threatened harm,” the defenses will fail. Clearly, in the context of prison escape, the escapee is not entitled to claim a defense of duress or necessity unless and until he demonstrates that, given the imminence of the threat, violation of § 751(a) was his only reasonable alternative.
In the present case, the Government contends that respondents’ showing was insufficient on two grounds. First, the Government asserts that the threats and conditions cited by respondents as justifying their escape were not sufficiently immediate or serious to justify their departure from lawful custody. Second, the Government contends that, once the respondents had escaped, the coercive conditions in the jail were no longer a threat and respondents were under a duty to terminate their status as fugitives by turning themselves over to the authorities.
Respondents, on the other hand, argue that the evidence of coercion and conditions in the jail was at least sufficient to go to the jury as an affirmative defense to the crime charged. As for their failure to return to custody after gaining their freedom, respondents assert that this failure should be but one factor in the overall determination whether their initial departure was justified. According to respondents, their failure to surrender “may reflect adversely on the bona fides of [their] motivation” in leaving the jail, but should not withdraw the question of their motivation from the jury’s consideration.
We need not decide whether such evidence as that submitted by respondents was sufficient to raise a jury question as to their initial departures. This is because we decline to hold that respondents’ failure to return is “just one factor” for the jury to weigh in deciding whether the initial escape could be affirmatively justified. On the contrary, several considerations lead us to conclude that, in order to be entitled to an instruction on duress or necessity as a defense to the crime charged, an escapee must first offer evidence justifying his continued absence from custody as well as his initial departure[5] and that an indispensable element of such an offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force.
First, we think it clear beyond peradventure that escape from federal custody as defined in § 751(a) is a continuing offense and that an escapee can be held liable for failure to return to custody as well as for his initial departure. Given the continuing threat to society posed by an escaped prisoner, “the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.” Moreover, every federal court that has considered this issue has held, either explicitly or implicitly, that § 751(a) defines a continuing offense.
… The Anglo-Saxon tradition of criminal justice, embodied in the United States Constitution and in federal statutes, makes jurors the judges of the credibility of testimony offered by witnesses. It is for them, generally, and not for appellate courts, to say that a particular witness spoke the truth or fabricated a cock-and-bull story. An escapee who flees from a jail that is in the process of burning to the ground may well be entitled to an instruction on duress or necessity, “for he is not to be hanged because he would not stay to be burnt.” United States v. Kirby (1869). And in the federal system it is the jury that is the judge of whether the prisoner’s account of his reason for flight is true or false. But precisely because a defendant is entitled to have the credibility of his testimony, or that of witnesses called on his behalf, judged by the jury, it is essential that the testimony given or proffered meet a minimum standard as to each element of the defense so that, if a jury finds it to be true, it would support an affirmative defense—here that of duress or necessity.
We therefore hold that, where a criminal defendant is charged with escape and claims that he is entitled to an instruction on the theory of duress or necessity, he must proffer evidence of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. We have reviewed the evidence examined elaborately in the majority and dissenting opinions below, and find the case not even close, even under respondents’ versions of the facts, as to whether they either surrendered or offered to surrender at their earliest possible opportunity. Since we have determined that this is an indispensable element of the defense of duress or necessity, respondents were not entitled to any instruction on such a theory. Vague and necessarily self-serving statements of defendants or witnesses as to future good intentions or ambiguous conduct simply do not support a finding of this element of the defense.
III
In reversing the judgments of the Court of Appeals, we believe that we are at least as faithful as the majority of that court to its expressed policy of “allowing the jury to perform its accustomed role” as the arbiter of factual disputes. The requirement of a threshold showing on the part of those who assert an affirmative defense to a crime is by no means a derogation of the importance of the jury as a judge of credibility. Nor is it based on any distrust of the jury’s ability to separate fact from fiction. On the contrary, it is a testament to the importance of trial by jury and the need to husband the resources necessary for that process by limiting evidence in a trial to that directed at the elements of the crime or at affirmative defenses. If, as we here hold, an affirmative defense consists of several elements and testimony supporting one element is insufficient to sustain it even if believed, the trial court and jury need not be burdened with testimony supporting other elements of the defense.
These cases present a good example of the potential for wasting valuable trial resources. In general, trials for violations of § 751(a) should be simple affairs. The key elements are capable of objective demonstration; the mens rea, as discussed above, will usually depend upon reasonable inferences from those objective facts. Here, however, the jury in the trial of Bailey, Cooley, and Walker heard five days of testimony. It was presented with evidence of every unpleasant aspect of prison life from the amount of garbage on the cellblock floor, to the meal schedule, to the number of times the inmates were allowed to shower. Unfortunately, all this evidence was presented in a case where the defense’s reach hopelessly exceeded its grasp. Were we to hold, as respondents suggest, that the jury should be subjected to this potpourri even though a critical element of the proffered defenses was concededly absent, we undoubtedly would convert every trial under § 751(a) into a hearing on the current state of the federal penal system.
Because the juries below were properly instructed on the mens rea required by § 751(a), and because the respondents failed to introduce evidence sufficient to submit their defenses of duress and necessity to the juries, we reverse the judgments of the Court of Appeals.
Reversed.
Mr. Justice MARSHALL took no part in the consideration or decision of these cases.
[Concurring opinion by Justice STEVENS omitted.]
Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN joins, dissenting.
The Court’s opinion, it seems to me, is an impeccable exercise in the undisputed general principles and technical legalism: The respondents were properly confined in the District of Columbia jail. They departed from that jail without authority or consent. They failed promptly to turn themselves in when, as the Court would assert by way of justification, the claimed duress or necessity “had lost its coercive force.” Therefore, the Court concludes, there is no defense for a jury to weigh and consider against the respondents’ prosecution for escape….
It is with the Court’s assertion that the claimed duress or necessity had lost its coercive force that I particularly disagree. The conditions that led to respondents’ initial departure from the D.C. jail continue unabated. If departure was justified—and on the record before us that issue, I feel, is for the jury to resolve as a matter of fact in the light of the evidence, and not for this Court to determine as a matter of law—it seems too much to demand that respondents, in order to preserve their legal defenses, return forthwith to the hell that obviously exceeds the normal deprivations of prison life and that compelled their leaving in the first instance. The Court, however, requires that an escapee’s action must amount to nothing more than a mere and temporary gesture that, it is to be hoped, just might attract attention in responsive circles. But life and health, even of convicts and accuseds, deserve better than that and are entitled to more than pious pronouncements fit for an ideal world.
The Court, in its carefully structured opinion, does reach a result that might be a proper one were we living in that ideal world, and were our American jails and penitentiaries truly places for humane and rehabilitative treatment of their inmates. Then the statutory crime of escape could not be excused by duress or necessity, by beatings, and by guard-set fires in the jails, for these would not take place, and escapees would be appropriately prosecuted and punished.
But we do not live in an ideal world “even” (to use a self-centered phrase) in America, so far as jail and prison conditions are concerned. The complaints that this Court, and every other American appellate court, receives almost daily from prisoners about conditions of incarceration, about filth, about homosexual rape, and about brutality are not always the mouthings of the purely malcontent. The Court itself acknowledges that the conditions these respondents complained about do exist. It is in the light of this stark truth, it seems to me, that these cases are to be evaluated. It must follow, then, that the jail-condition evidence proffered by respondent Cogdell should have been admitted, and that the jury before whom respondents Bailey, Cooley, and Walker were tried should not have been instructed to disregard the jail-condition evidence that did come in. I therefore dissent.
I
The atrocities and inhuman conditions of prison life in America are almost unbelievable; surely they are nothing less than shocking. The dissent in the Bailey case in the Court of Appeals acknowledge that “the circumstances of prison life are such that at least a colorable, if not credible, claim of duress or necessity can be raised with respect to virtually every escape.” And the Government concedes: “In light of prison conditions that even now prevail in the United States, it would be the rare inmate who could not convince himself that continued incarceration would be harmful to his health or safety.”
A youthful inmate can expect to be subjected to homosexual gang rape his first night in jail, or, it has been said, even in the van on the way to jail. Weaker inmates become the property of stronger prisoners or gangs, who sell the sexual services of the victim. Prison officials either are disinterested in stopping abuse of prisoners by other prisoners or are incapable of doing so, given the limited resources society allocates to the prison system. Prison officials often are merely indifferent to serious health and safety needs of prisoners as well.
Even more appalling is the fact that guards frequently participate in the brutalization of inmates. The classic example is the beating or other punishment in retaliation for prisoner complaints or court actions.
The evidence submitted by respondents in these cases fits that pattern exactly. Respondent Bailey presented evidence that he was continually mistreated by correctional officers during his stay at the D.C. jail. He was threatened that his testimony in the Brad King case would bring on severe retribution. Other inmates were beaten by guards as a message to Bailey. An inmate testified that on one occasion, three guards displaying a small knife told him that they were going [kill Bailey, using a racial epithet to refer to Bailey]. The threats culminated in a series of violent attacks on Bailey. Blackjacks, mace, and slapjacks (leather with a steel insert) were used in beating Bailey.
Respondent Cooley also elicited testimony from other inmates concerning beatings of Cooley by guards with slapjacks, blackjacks, and flashlights. There was evidence that guards threatened to kill Cooley.
… It cannot be doubted that excessive or unprovoked violence and brutality inflicted by prison guards upon inmates violates the Eighth Amendment…. There can be little question that our prisons are badly overcrowded and understaffed and that this in large part is the cause of many of the shortcomings of our penal systems. This, however, does not excuse the failure to provide a place of confinement that meets minimal standards of safety and decency. Penal systems in other parts of the world demonstrate that vast improvement surely is not beyond our reach….
II
The real question presented in this case is whether the prisoner should be punished for helping to extricate himself from a situation where society has abdicated completely its basic responsibility for providing an environment free of life-threatening conditions such as beatings, fires, lack of essential medical care, and sexual attacks. To be sure, Congress in so many words has not enacted specific statutory duress or necessity defenses that would excuse or justify commission of an otherwise unlawful act. The concept of such a defense, however, is “anciently woven into the fabric of our culture.” J. Hall, General Principles of Criminal Law 416 (2d ed. 1960), quoted in Brief for United States 21. And the Government concedes that “it has always been an accepted part of our criminal justice system that punishment is inappropriate for crimes committed under duress because the defendant in such circumstances cannot fairly be blamed for his wrongful act.”
Although the Court declines to address the issue, it at least implies that it would recognize the common-law defenses of duress and necessity to the federal crime of prison escape, if the appropriate prerequisites for assertion of either defense were met. Given the universal acceptance of these defenses in the common law, I have no difficulty in concluding that Congress intended the defenses of duress and necessity to be available to persons accused of committing the federal crime of escape.
I agree with most of the Court’s comments about the essential elements of the defenses. I, too, conclude that intolerable prison conditions are to be taken into account through affirmative defenses of duress and necessity, rather than by way of the theory of intent espoused by the Court of Appeals… I therefore agree that it is appropriate to treat unduly harsh prison conditions as an affirmative defense.
I also agree with the Court that the absence of reasonable less drastic alternatives is a prerequisite to successful assertion of a defense of necessity or duress to a charge of prison escape. One must appreciate, however, that other realistic avenues of redress seldom are open to the prisoner. Where prison officials participate in the maltreatment of an inmate, or purposefully ignore dangerous conditions or brutalities inflicted by other prisoners or guards, the inmate can do little to protect himself. Filing a complaint may well result in retribution, and appealing to the guards is a capital offense under the prisoners’ code of behavior. In most instances, the question whether alternative remedies were thoroughly “exhausted” should be a matter for the jury to decide.
I, too, conclude that the jury generally should be instructed that, in order to prevail on a necessity or duress defense, the defendant must justify his continued absence from custody, as well as his initial departure. I agree with the Court that the very nature of escape makes it a continuing crime. But I cannot agree that the only way continued absence can be justified is by evidence “of a bona fide effort to surrender or return to custody.” The Court apparently entertains the view, naive in my estimation, that once the prisoner has escaped from a life- or health-threatening situation, he can turn himself in, secure in the faith that his escape somehow will result in improvement in those intolerable prison conditions. While it may be true in some rare circumstance that an escapee will obtain the aid of a court or of the prison administration once the escape is accomplished, the escapee, realistically, faces a high probability of being returned to the same prison and to exactly the same, or even greater, threats to life and safety.
The rationale of the necessity defense is a balancing of harms. If the harm caused by an escape is less than the harm caused by remaining in a threatening situation, the prisoner’s initial departure is justified. The same rationale should apply to hesitancy and failure to return. A situation may well arise where the social balance weighs in favor of the prisoner even though he fails to return to custody. The escapee at least should be permitted to present to the jury the possibility that the harm that would result from a return to custody outweighs the harm to society from continued absence.
Even under the Court’s own standard, the defendant in an escape prosecution should be permitted to submit evidence to the jury to demonstrate that surrender would result in his being placed again in a life- or health-threatening situation. The Court requires return to custody once the “claimed duress or necessity had lost its coercive force.” Realistically, however, the escapee who reasonably believes that surrender will result in return to what concededly is an intolerable prison situation remains subject to the same “coercive force” that prompted his escape in the first instance. It is ironic to say that that force is automatically “lost” once the prison wall is passed.
The Court’s own phrasing of its test demonstrates that it is deciding factual questions that should be presented to the jury. It states that a “bona fide” effort to surrender must be proved. Whether an effort is “bona fide” is a jury question. The Court also states that “[v]ague and necessarily self-serving statements of defendants or witnesses as to future good intentions or ambiguous conduct simply do not support a finding of this element of the defense.”. Traditionally, it is the function of the jury to evaluate the credibility and meaning of “necessarily self-serving statements” and “ambiguous conduct.”
Finally, I of course must agree with the Court that use of the jury is to be reserved for the case in which there is sufficient evidence to support a verdict. I have no difficulty, however, in concluding that respondents here did indeed submit sufficient evidence to support a verdict of not guilty, if the jury were so inclined, based on the necessity defense. Respondent Bailey testified that he was in fear for his life, that he was afraid he would still face the same threats if he turned himself in, and that “[t]he FBI was telling my people that they was going to shoot me.” Respondent Cooley testified that he did not know anyone to call, and that he feared that the police would shoot him when they came to get him. Respondent Walker testified that he had been in “constant rapport” with an FBI agent, who assured him that the FBI would not harm him, but who would not promise that he would not be returned to the D.C. jail. Walker also stated that he had heard through his sister that the FBI “said that if they ran down on me they was going to kill me.”
Perhaps it is highly unlikely that the jury would have believed respondents’ stories… Nevertheless, such testimony, even though “self-serving,” and possibly extreme and unwarranted in part, was sufficient to permit the jury to decide whether the failure to surrender immediately was justified or excused. This is routine grist for the jury mill and the jury usually is able to sort out the fabricated and the incredible.
In conclusion, my major point of disagreement with the Court is whether a defendant may get his duress or necessity defense to the jury when it is supported only by “self-serving” testimony and “ambiguous conduct.” It is difficult to imagine any case, criminal or civil, in which the jury is asked to decide a factual question based on completely disinterested testimony and unambiguous actions. The very essence of a jury issue is a dispute over the credibility of testimony by interested witnesses and the meaning of ambiguous actions.
…[T]he Court here appears to place an especially strict burden of proof on defendants attempting to establish an affirmative defense to the charged crime of escape. That action is unwarranted. If respondents’ allegations are true, society is grossly at fault for permitting these conditions to persist at the D.C. jail. The findings of researchers and government agencies, as well as the litigated cases, indicate that in a general sense these allegations are credible. The case for recognizing the duress or necessity defenses is even more compelling when it is society, rather than private actors, that creates the coercive conditions. In such a situation it is especially appropriate that the jury be permitted to weigh all the factors and strike the balance between the interests of prisoners and that of society. In an attempt to conserve the jury for cases it considers truly worthy of that body, the Court has ousted the jury from a role it is particularly well suited to serve.
Notes and questions on U.S. v. Bailey
1. Bailey provides a good illustration of the difference between, on one hand, a failure of proof claim based on inadequate evidence of the necessary mental state, and, on the other hand, an affirmative defense. The lower federal court, the Court of Appeals, had reversed the defendants’ convictions with an argument focused on mental states. Specifically, the lower court held that the federal escape statute required the prosecution to prove that the defendant left custody “with an intent to avoid confinement,” meaning, an intent to avoid ordinary prison conditions rather than an intent to avoid extreme violence or especially poor conditions. At the Supreme Court, both the majority and the dissenting opinions rejected this reading of the statute. But the majority also rejected the defendants’ separate argument that the jury should have been instructed on the affirmative defenses of necessity and duress. Justice Blackmun’s dissent argued that the defendants had introduced enough evidence in support of these affirmative defenses to allow the jury to consider them.
2. Notice that the question of jury instructions here is not about the specific way that necessity or duress doctrines will be described to the jury, but about whether the jury should have been told to consider these affirmative defenses at all. Judges typically serve as gatekeepers for affirmative defense arguments, meaning that the trial judge considers the evidence that the defendant wishes to present in support of the affirmative defense, and then decides whether the defendant’s evidence is substantial enough for the question to be presented to the jury. The process is comparable to a court making a probable cause determination pre-trial: a court could, in theory, decide that the evidence in support of a prosecution’s charge is so weak that it does not even establish “probable cause” and the case should not go forward. In practice, judges rarely throw out prosecutorial charges for lack of probable cause, but judges deny defendants’ requests to present affirmative defenses to juries fairly often. In Bailey’s trial, he and his co-defendants were initially allowed to present extensive evidence of the deplorable conditions in the DC jail, but the trial judge subsequently denied the defendants’ request for jury instructions on necessity and duress, and instead told the jury to disregard the evidence concerning jail conditions.
3. Neither necessity nor duress was defined by statute in federal law at the time of this case, so the Supreme Court relies on common law to identify the elements of each defense. Necessity is sometimes called “the choice of evils” defense. The Bailey Court describes necessity as applicable to “the situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils,” but does not give a specific list of elements. Here is one more specific, and fairly standard, definition of necessity from a state court:
(1) there must be a situation of emergency arising without fault on the part of the actor concerned;
(2) this emergency must be so imminent and compelling as to raise a reasonable expectation of harm, either directly to the actor or upon those he was protecting;
(3) this emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; and
(4) the injury impending from the emergency must be of sufficient seriousness to outmeasure the criminal wrong.
State v. Thayer, 14 A.3d 231, 233 (Vt. 2010). In Thayer, the Vermont Supreme Court rejected a necessity defense raised by a woman prosecuted for growing marijuana. Vermont had legalized medical marijuana before the woman’s arrest, but required growers to meet certain conditions, such as growing the marijuana in an indoor facility. The woman argued that marijuana was necessary to treat her ailing son and that she needed to cultivate plants outdoors in order to produce a sufficient quantity. The court found that the defendant had not established a true necessity to grow the plants inside, and noted, “to the extent defendant justifies the violation based on her disagreement or disapproval of the law’s provisions, this argument falls outside the scope of the necessity defense. The necessity defense is generally not available to excuse criminal activity by those who disagree with the policies of the government.” Thayer, 14 A.3d at 235.
1. Duress is similar to necessity, but usually defined to require evidence that a specific person or persons threatened the defendant or a third party with death or great bodily injury, and the defendant reasonably believed that the commission of the offense was the only way to avoid that harm. The Bailey Court’s description of the conditions that will give rise to a duress defense, “threats or conditions that a person of ordinary firmness would have been unable to resist,” is typical. And as the Bailey Court notes, the traditional understanding of the necessity defense identifies some circumstance or condition (“physical forces beyond the actor’s control”) that generates the need to commit a crime, while the traditional understanding of duress identifies a human being (or multiple humans) as the source of the threat to the defendant. Necessity is classified as a justification, whereas duress is classified as an excuse.
2. Self-defense doctrine typically applies only to defendants who are charged with the use of force against another person, so self-defense is raised most often in homicide, attempted homicide, and assault cases. Necessity and duress defenses could in principle be raised against any kind of criminal charge, although many jurisdictions say that necessity and duress are not available as a defense to murder or other homicide charges. Necessity and duress claims are infrequently raised, and they are usually unsuccessful. One context in which both claims are raised by defendants with some regularity (but again, usually without success) is gun possession.
3. Be sure to understand why the trial court, and the U.S. Supreme Court, found it proper to deny the defendants’ request for a necessity or duress instruction to the jury: “[W]here a criminal defendant is charged with escape and claims that he is entitled to an instruction on the theory of duress or necessity, he must proffer evidence of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force.” Does Justice Blackmun’s dissent reject this requirement? What is the key disagreement between majority and dissent in this case?
4. The exponential growth of the U.S. prison population that eventually produced the term “mass incarceration” began in the 1970s and continued throughout the 1980s and 1990s, finally leveling off early in the twenty-first century. In the first decades of mass incarceration, there was a great deal of attention to, and litigation over, conditions in U.S. prisons and jails. By many accounts, prisoners’ challenges to their conditions of confinement eventually achieved a measure of success, in that prisons and jails became somewhat safer and less overcrowded. This was accomplished in part by judicial injunctions that led to the building of more prisons and the investment of more resources to manage them. For an overview and analysis of the courts’ role in this lengthy and significant change, see Malcolm Feeley & Edward Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons (1998). In 1976, when Bailey and his co-defendants escaped from the DC jail, conditions were still terrible at many institutions. Note the contrast between the way that the conditions identified by the majority opinion (“garbage on the cellblock floor … the meal schedule … the number of times the inmates were allowed to shower”) and the conditions identified by the concurring and dissenting opinions. The dissenting opinion reports that jail officials had made specific threats to kill Bailey and Cooley, another defendant, that the officials had used a racial epithet in referring to Bailey, and that both men were subjected to “a series of violent attacks” by jail employees.
Check Your Understanding (10-3)
The original version of this chapter contained H5P content. You may want to remove or replace this element.
The original version of this chapter contained H5P content. You may want to remove or replace this element.
Insanity
Cal. Penal Code 25. Diminished capacity; insanity.
(a) The defense of diminished capacity is hereby abolished. In a criminal action, as well as any juvenile court proceeding, evidence concerning an accused person’s intoxication, trauma, mental illness, disease, or defect shall not be admissible to show or negate capacity to form the particular purpose, intent, motive, malice aforethought, knowledge, or other mental state required for the commission of the crime charged.
(b) In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.
(c) Notwithstanding the foregoing, evidence of diminished capacity or of a mental disorder may be considered by the court only at the time of sentencing or other disposition or commitment.
(d) The provisions of this section shall not be amended by the Legislature except by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.
THE PEOPLE, Plaintiff and Respondent
v.
BETTY HORN, Defendant and Appellant
Court of Appeal, Third District, California
158 Cal.App.3d 1014, 205 Cal.Rptr. 119
Aug 1, 1984
SPARKS, J.
“It is fundamental to our system of jurisprudence that a person cannot be convicted for acts performed while insane.” People v. Kelly (1973). But who is insane? In this case we explore that question by considering the type of showing which will support a finding of not guilty by reason of insanity under Penal Code section 25, subdivision (b), a new statute added to that code by the enactment of Proposition 8, the Victim’s Bill of Rights, at the June 1982 Primary Election. Under this statute, a defendant is insane only when “he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.” (Pen. Code, § 25, subd. (b), italics added.) The central issue is whether the use of the word “and” rather than “or” reflects an intent of the people to reject California’s version of the historic MNaghten standard of insanity and adopt instead the “wild beast” test of antiquity. We conclude that it does not and consequently hold that the initiative measure reinstated the California M’Naghten right and wrong test as the measure of criminal insanity in this state.
…The factual circumstances are not in dispute. On the afternoon of September 17, 1982, defendant drove her automobile into the self-service island of a Texaco gas station. She put \$15 worth of gasoline into her car and then attempted to pay for it with a Triple A Towing Card. When told the attendant could not accept the card, defendant stated she must have left her credit card at home…. The attendant … suggested defendant call someone to bring some cash to the station. Defendant agreed and used the telephone.
Defendant told the gas station attendant that someone was bringing money to her and the attendant suggested defendant move her car so she would not block the island. Defendant got into her car and drove out of the station. As she did so she almost struck another car. She then drove through a parking lot, across a cement border into a field, into another parking lot, and finally onto the road. An attendant from the gas station followed defendant on his motorcycle. He observed defendant travel at 80 to 85 miles per hour, and run a red light. Defendant continued at 80 to 85 miles per hour until she approached another red light. At that time she applied her brakes and slowed to about 60 miles per hour, and then entered the intersection. There defendant collided with another motorcycle and tragically killed the rider.
Defendant was charged with vehicular manslaughter. She entered pleas of not guilty and not guilty by reason of insanity. Defendant waived a jury trial and submitted the issue of guilt to the trial court…. Predictably, she was found guilty. The plea of not guilty by reason of insanity was then tried to the court.
During the sanity trial it was established beyond any doubt that defendant suffers from mental illness. …[S]he has been under treatment for mental illness for a number of years. Dr. Alfred French, a court-appointed psychiatrist, diagnosed defendant’s illness as a manic-depressive disorder. The other court-appointed psychiatrist, Dr. Audrey Mertz, concurred and added that defendant’s illness is a bipolar affective disorder. This means that she is subject to mood swings and may suffer from both the manic and depressive aspects of the disease at different times.
Defendant has been hospitalized from time to time for her illness, including a hospitalization as recent as July 1982. During her treatment for the disease defendant has been given lithium, which is one of the primary means of treating her illness. When she was discharged from the hospital in July 1982, her lithium treatment was discontinued.
Dr. French testified that in his opinion defendant would have been incapable of knowing or understanding the nature and quality of her acts and distinguishing right from wrong at the time of the accident. The discontinuance of her lithium treatment would cause her condition to deteriorate and lead to an increase in her manic state. This would result in the characteristics of impulsiveness, irrational thinking, grandiosity and irritability. This, coupled with the “provocation” she would perceive from being followed by a motorcyclist, would impair her ability to perceive her true situation accurately.
Dr. Mertz agreed that in the manic phase of her illness defendant would have difficulty determining right from wrong and in understanding the nature and quality of her acts. Her judgment, in Mertz’s opinion, was seriously impaired….
Defendant testified at the insanity phase of the trial. It appeared that in the months before the accident her life had been in turmoil. Her husband had taken the children and filed for a dissolution…. She had been using her husband’s credit card for living expenses, but had been required to return it. She had then begun selling her furniture to obtain funds. Shortly before this incident there had been a fire in defendant’s residence. [As a result of that fire, defendant was charged with arson, but was found not guilty by reason of insanity.]
…[On the day of the accident,] she wanted her husband to come to the station and pay for her gas. When she called him, however, he either could not or would not come to the station. She then got into her car and headed towards a friend’s house to obtain money. She observed the attendant from the station following on his motorcycle and was afraid of him, although she was not trying to get away from him. She remembered seeing the red light before the collision, but could not remember if she tried to stop. She did not see the motorcyclist before the collision.
Based upon this evidence, the trial court found that defendant was sane at the time of the accident. The court [found] that Proposition 8 added a more strict standard than any of the usual tests for insanity. The court expressly indicated that defendant “was legally insane under every standard known to the law except for the mental standard.” The court said defendant was insane under both prongs of the American Law Institute (ALI) test; under the knowledge of wrongfulness prong of the M’Naghten Test, and under the so-called Durham or product test. The court further indicated that it would be prepared to find that at the time of the incident defendant was incapable of distinguishing between right and wrong by reason of her mental illness. Nevertheless, the court concluded that defendant had not sustained her burden of showing that she was also incapable of knowing the nature and quality of her act, and therefore ruled that she was not insane under § 25. Defendant was sentenced to state prison for the lower base term of 16 months.
Discussion
This case squarely presents issues of the meaning and validity of § 25(b). In order to resolve these issues it will be necessary to recite a brief review of the history of the insanity defense.
“The starting point from an historical point of view is the ancient position which did not regard mental disorder, or insanity, as having any bearing upon the matter of criminal guilt.” (Perkins on Criminal Law (2d ed. 1969). … When insanity became a defense to a charge of crime, it was generally held that the insanity must be total: the accused had to be wholly without the capacity to understand and remember in order to be innocent by reason of insanity.
In the nineteenth century the celebrated case of Daniel M’Naghten arose. M’Naghten had attempted to assassinate the Prime Minister of England, and instead succeeded in killing the Prime Minister’s secretary. He was found not guilty by reason of his insanity. Because of the prominence of M’Naghten’s intended victim, there was great public excitement and eventually the House of Lords put five hypothetical questions to the judges of the common law courts concerning the law of criminal responsibility. It was the judges’ response to two of those questions which ultimately became the basis for the insanity test in all American states except New Hampshire. The response asserted: “[T]o establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” M’Naghtens Case (1843) 10 Clark & Fin. 200.
The M’Naghten “right and wrong” standard was early adopted in California as the standard for an insanity defense…. The insanity test based upon the M’Naghten case has generally become known as the “right and wrong” test. [The court contrasted M’Naghten to an older “wild beast” test, which exempted a defendant from punishment on grounds of insanity only if he was “a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast, such a one is never the object of punishment.”] … Although various phrases have been used to set forth the M’Naghten test, “[i]n substance these all have reference to whether the defendant really knew what he was doing, and this is true whether we have in mind an extreme situation such as Stephen’s illustration of a man who thought his homicidal act was ‘breaking a jar,’ or an inquiry whether there was an understanding of the ‘real nature and true character of the act as a crime, and not … the mere act itself.’
Although the M’Naghten right and wrong standard became the test for insanity in the majority of American jurisdictions, numerous criticisms were directed at it. Some jurisdictions have modified or abandoned the M’Naghten test in favor of tests providing a broader scope of insanity. The primary manner in which the test has been modified has been by the addition of a volitional element, usually referred to as an “irresistible impulse” test, and also known as “moral insanity” or “emotional insanity.” Under this test the accused may escape criminal liability for his acts regardless whether he was capable of understanding the nature and quality of those acts and that they were wrong, if he was unable to choose between right and wrong, or to conform his conduct to the requirements of the law. In short, “this rule, broadly stated, tells jurors to acquit by reason of insanity if they find the defendant had a mental disease which kept him from controlling his conduct.” As we shall see, California’s rejection of the irresistible impulse test came early, and has persisted.
Another test developed was the Durham or “product” test [Durham v. United States (D.C. Cir. 1954).] That test required the trier of fact to determine whether the accused was insane, and if so, whether the wrongful act was the product of his insanity. The Durham formulation received little support from lawmakers and courts….
From an early date the California Supreme Court was urged to adopt the irresistible impulse test as a means of determining criminal responsibility, but the court refused to do so. In People v. Hoin, the court explained that there are three powerful restraints to a disposition to commit crime—the restraint of religion, the restraint of conscience, and the restraint of law. If a criminal disposition or influence may itself serve as an excuse for crime, then a most powerful restraint is withdrawn, that forbidding and punishing its perpetration. Accordingly, unless the impulse under which the deed was done was one which altogether deprived the accused of the ability to know that he was doing wrong, he is responsible for his actions.
… [However,] [i]n People v. Drew the Supreme Court … judicially abandoned M’Naghten. In its stead the court decreed that trial courts should apply the test developed by the American Law Institute for its Model Penal Code, known as the ALI test. Under that test, “[a] person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.” (Model Penal Code (Official Draft 1962) § 4.01.) This test alters the test for insanity in at least two major respects. First, it does away with the all-or-nothing language of M’Naghten, and replaces it with a less stringent standard of substantial capacity. Second, it adds a volitional prong to the test by requiring the capacity to conform to legal requirements….
The ALI test was itself rejected four years later when the people exercised the legislative power through the retained right of initiative by enacting Proposition 8 at the June 1982 Primary Election. Among other things that measure enacted Penal Code § 25. For the first time in California’s history, the defense of insanity was statutorily defined. Subdivision (b) of § 25 now provides: “In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.”
Although the insanity provisions of Proposition 8 are couched in the language of M’Naghten, the conjunctive “and” is used rather than the disjunctive “or” between the two prongs of the test. Defendant argues that Proposition 8 was not intended to create a new test of insanity, but was only intended to abrogate the decision in Drew and to return to California’s version of the M’Naghten right and wrong test for criminal insanity. For reasons we shall explain, we agree.
[The court explained that confusion had arisen because trial courts sometimes spoke of the definition of sanity, and in other cases, of the definition of insanity. One formulation required “and”; the other required “or.”] [As put in People v. Wolff,] “The test of sanity is this: First, did the defendant have sufficient mental capacity to know and understand what he was doing, and second, did he know and understand that it was wrong and a violation of the rights of another?” (italics in original.) As can be seen, this test of sanity uses the conjunctive “and” construction. Conversely, the test of insanity necessarily must use the disjunctive “or” form. In order to be sane, “’the defendant must be able to know and understand the nature and quality of his act and to distinguish between right and wrong at the time of the commission of the offense.”’ (Ibid., italics in original.) Thus if a defendant knows and understands the nature and quality of his act but does not know it is wrong, he is, by definition, insane. Hence the reciprocal tests of sanity and insanity were correctly stated in CALJIC No. 4.00 (3d ed. 1970): “If you find that the defendant was capable of knowing and understanding the nature and quality of his act and, in addition, was capable of knowing and understanding that his act was wrong, you will find that he was legally sane. However, if you find that the defendant was not capable of knowing or understanding the nature and quality of his act, you will find that he was legally insane; or, if you find that he was incapable of knowing or understanding that his act was wrong, you will find that he was legally insane.” The confusion over the correct usage of the conjunctive/disjunctive form of the M’Naghten rule thus arises from the failure to distinguish between the alternative definitions of sanity and insanity. This not uncommon confusion is evident in the Proposition 8 formulation of the M’Naghten test. We accept this blurred statement for what it appears to be, a careless draft, rather than divining in it some inexplicable regression by California’s citizens to medieval barbarism.
We do not lightly disregard the fact that the word “and” is used in the statute. Nevertheless, “the word ‘or’ is often used as a careless substitute for the word ‘and’; that is, it is often used in phrases where ‘and’ would express the thought with greater clarity.” … Where, as here, we are concerned with a measure adopted by the people through the initiative power, it is appropriate that the purpose of the measure be determined by reference to the language used, the ballot summary, the argument and analysis presented to the voters, and the contemporaneous construction by the Legislature.
… Proposition 8 was … intended to serve as a deterrent to criminal behavior. Deterrence was the precise reason our courts refused to adopt the irresistible impulse theory before Drew… But this purpose of deterrence would not be served by the abrogation of the M’Naghten test as well. This is because the restraint of law is dependent upon the ability of the individual to make a choice between right and wrong, and a person who cannot understand right and wrong cannot make such a choice. … Thus, as the Supreme Court of Washington noted: “M’Naghten is preferable to the American Law Institute test in that the M’Naghten rule better serves the basic purpose of the criminal law-to minimize crime in society. … [W]hen M’Naghten is used, all who might possibly be deterred from the commission of criminal acts are included within the sanctions of the criminal law.” State v. White (Wash. 1962).
The primary means by which Proposition 8 deters crime is through punishment. … The criminal law has long been based upon the concept of freedom of choice and adherence to the M’Naghten test has been based upon the refusal of the courts to accept the proposition that a person who knowingly commits a wrongful or criminal act should not be held accountable. But the M’Naghten test recognizes that those who are incapable of understanding the wrongfulness of their conduct have no opportunity of choice and cannot harbor an evil intent or mens rea….
It can thus be seen that the purposes of Proposition 8 would be served by the abrogation of Drew, but not by the abrogation of M’Naghten….
Proposition 8 was passed by the electorate on June 8, 1982, and became law the following day. On that day the Attorney General [explained the new law]: “Essentially, this restores the traditional M’Naghten rule as to insanity, which was overturned by the California Supreme Court in People v. Drew (1978). While ‘and’ is used between the two phrases, although ‘or’ was used in the former test, there appears to be little practical difference between the former version of M’Naughton and the new structure.” We agree with this assessment that the new statute “restores the traditional M’Naghten rule.”
… For all of these reasons, we decline to interpret the statute as enacting a new drooling idiot test in place of the century old M’Naghten standard merely because it uses the single, and often misused, conjunctive “and.” That conjunctive is too thin a reed to support such a massive doctrinal transformation.
In this case in addition to the briefs from defendant and the People we have accepted amicus curiae briefs from the State Public Defender and the California Attorneys for Criminal Justice in support of defendant, and from the Criminal Justice Legal Foundation in support of the People. It is significant that all of the parties who have submitted briefs are in agreement that the insanity provisions of Proposition 8 were intended to abrogate Drew and return to the traditional M’Naghten standard. While we are reluctant to decide a matter of statewide significance based upon a concession of the parties, in this case our independent research convinces us that this position is sound. Accordingly, we hold that § 25(b) reinstates the California M’Naghten right and wrong test as the standard for the insanity defense in this state.
Since we conclude that Proposition 8 and § 25(b) abrogate the Drew decision and return California to the right and wrong standard of criminal insanity, it is unnecessary for us to consider the contentions that a stricter standard would violate the constitutional requirement of due process and the prohibition against cruel and unusual punishment. The right and wrong test passes constitutional muster. … We turn then to a consideration whether defendant is entitled to a finding of not guilty by reason of insanity.
Defendant contends the People are collaterally estopped to deny that she was insane [because she] was found to have been legally insane [in an earlier proceeding regarding an arson charge]. We reject [this] contention…. The issue in an insanity trial is whether the defendant, at the time of the commission of the offense, could appreciate right and wrong in relation to the very act with which she is charged. Whether defendant could appreciate the wrongfulness of her conduct in relationship to an arson some days before this incident is not determinative of her sanity in this case and hence poses a different issue in a different controversy. As the psychiatric testimony in this case established, defendant’s … mental capacity at one point in time is not necessarily indicative of her capacity at another time. In short, the sanity issue decided in the Placer County prosecution is not identical to the issue posed in this case because proof of insanity on one day is not proof of insanity on another.
The People, while agreeing that § 25(b) reinstates the M’Naghten standard, urge that the two prongs of the M’Naghten test are really the same thing. As our earlier discussion forecasts, we must reject this contention. A person who is capable of understanding the nature and quality of her action is not necessarily capable of appreciating the wrongfulness of her conduct. The evidence in this case illustrates this truism. There was no real evidence that defendant could not understand the nature and quality of her act. From her testimony it is clear that she was aware that she was driving her car, was being followed by the gas station attendant on his motorcycle, and that she was entering an intersection on a red light. However, the psychiatric testimony and defendant’s own recollection supported the claim that she was incapable of appreciating the wrongfulness of her conduct.
The trial court rejected the insanity defense, but in doing so it expressly found that defendant met the second prong of the M’Naghten test because she was incapable of distinguishing between right and wrong at the time of the incident. Since this finding established insanity under the M’Naghten test, defendant is entitled to a judgment of not guilty by reason of insanity.
The judgment is reversed and the cause is remanded to the trial court with directions to enter a judgment of not guilty by reason of insanity and to take such further proceedings as are required by law.
EVANS, Acting P. J., dissenting.
…The text of § 25(b) demonstrates that the initiative enacted by the People imposes a far more stringent standard which requires proof that the accused suffered from both aspects of the MNaghten test.
Viewed from any intellectual position, the harshness of the result extracted by the clear, unambiguous language of the provisions of § 25(b) is apparent. However, that harshness does not rise to prohibitive constitutional dimension or compel a statutory change by judicial decision; the fact that the statute compels a harsh result does not render it ambiguous and subject to interpretation. Merely because the language used results in the imposition of a strict standard for the defense of criminal insanity, we may not be permitted to indulge a judicial preference and conjure a judicial amendment to the statute by construing “and” to mean “or.”
The terms “and” and “or,” clearly conjunctive and disjunctive, may have at times in the past been erroneously used interchangeably by careless courts; however, that circumstance does not permit us to be so presumptive as to conclude the people, by their initiative process, didn’t mean what they clearly stated, that the conjunctive rather than the disjunctive be required and both prongs of the MNaghten test be established in order to prove insanity as a criminal defense.
… Proposition 8 received widespread publicity. … Each voter was … provided written arguments [for and against] Proposition 8… In those documents the analysis by the legislative analyst described the test of insanity in the conjunctive and stated, “These provisions could increase the difficulty of proving that a person is not guilty by reason of insanity.” In the argument submitted to the voters in favor of Proposition 8 was the statement, “[Y]ou will limit the ability of violent criminals to hide behind the insanity defense, … Of those convicted of felonies, one-third go to state prison and the remaining two-thirds are back in the community in a relatively short period of time. There Is Absolutely No Question That the Passage of This Proposition Will Result in … More Criminals Being Sentenced to State Prison, and More Protection for the Law-Abiding Citizenry ….”
The defendant implicates the argument that the voters were misled or confused in requiring the more difficult standard of proving both prongs of the MNaghten test. Such an argument can only be based upon the improbable assumption that the people did not know what they were doing. In our judicial review, we should not lightly presume that the voters were unaware of the consequences of their actions in approving Proposition 8….
…I can find nothing in the statute, the entire initiative, the arguments presented in favor of, in rebuttal to, or in explanation of the text of the initiative, that would imply that the voters did not intend the conjunctive to be the requirement rather than by implication the disjunctive. Under the statute, criminally insane persons, that is those who know neither the nature of their act nor its wrongfulness, would presumably be unable to benefit from the punishment imposed by way of a criminal sentence or to be rehabilitated or deterred thereby. Conversely, persons who know the nature and consequences of their act, or know the act they are committing is wrong, could presumably benefit from or be deterred by the imposition of criminal punishment. As a result, the criminally insane as established under § 25(b) are different than the noncriminally insane with respect to the legitimate purpose of the law.
Since the defendant failed to establish by a preponderance of the evidence that she met both standards enunciated in the statute, I would affirm the judgment.
Notes and questions on People v. Horn
1. Apparently, Daniel M’Naghten, the man who tried to kill the Prime Minister of England in 1843 and the man for whom the most common definition of insanity is named, was inconsistent with the spelling of his own name. Courts have been similarly inconsistent; older opinions sometimes refer to McNaughton, M’Naughten, or McNaughten. Whatever spelling is adopted, the underlying legal doctrine is the prevailing test for insanity in the United States: a defendant can be relieved of criminal liability on grounds of insanity if “at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, … he did not know he was doing what was wrong.” This test is often described as one that focuses on cognition, or the defendant’s knowledge of the nature or wrongfulness of his own acts.
2. The “irresistible impulse” test adopted by some courts as an expansion of M’Naghten focuses on volition rather than cognition. The question is whether the defendant was “unable to choose between right and wrong, or [unable] to conform his conduct to the requirements of the law.” The Model Penal Code combined both the cognitive inquiry of M’Naghten and the volitional inquiry of irresistible impulse, but broadened both. Traditional interpretations of M’Naghten required a total failure of cognition (the defendant did not know his own acts or that they were wrong), and the irresistible impulse test required a total failure of volition (the defendant was “unable” to control his own conduct). In contrast, MPC § 4.01 allows a defendant to establish insanity by showing a lack of “substantial capacity” with regard to either cognition or volition:
Model Penal Code § 4.01. Mental disease or defect excluding responsibility
(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.
(2) As used in this Article, the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
1. People v. Horn concerns a new statutory definition of insanity, adopted as part of Proposition 8, that seems close to M’Naghten but uses the word “and” where M’Naghten used “or.” To require a defendant to show both prongs of the M’Naghten test, rather than just one, would significantly narrow the definition of insanity. The Horn court’s conclusion that the “and” was a drafting error and should be read as “or” was subsequently endorsed by the California Supreme Court in People v. Skinner, 704 P.2d 752 (1985).
2. As of 2015, the majority of states and the federal government used some version of M’Naghten to define insanity. A minority of states use some version of the Model Penal Code’s definition, and just one state, New Hampshire, uses the Durham or “product” test described in People v. Horn. Four states have “abolished” the insanity defense altogether, as discussed below. For a history of insanity law and an overview of current law, with a specific focus on “deific decrees” or claims by a defendant that he acted under God’s command, see Rabia Belt, When God Demands Blood: Unusual Minds and the Troubled Juridical Ties of Religion, Madness, and Culpability, 69 U. Miami L. Rev. 755, 784 (2015).
3. Insanity is usually understood as a true affirmative defense, meaning that a defendant can avoid criminal liability even if she had the mental state (and engaged in the conduct) specified in the charged offense. Betty Horn was convicted of vehicular manslaughter, a crime that required proof that defendant killed “the victim ‘without malice but with gross negligence … while driving a vehicle ….” In a footnote, the Horn court explained “the definition of gross negligence in vehicular manslaughter as ‘the failure to exercise any care, or the exercise of so little care that [the jurors] are justified in believing that the person whose conduct is involved was wholly indifferent to the consequences of his conduct and to the welfare of others.’” Could a defendant have the mens rea required for this offense and yet still be insane? The Horn court noted, “Presumably the trial court found that defendant failed to prove by a preponderance of the evidence that she was incapable of knowing or understanding that she was driving a motor vehicle with gross negligence.” Because the trial court had found that both prongs of M’Naghten were required for insanity, and the trial court found only one of those prongs (inability to know that one’s actions are wrong) to be established, the trial court rejected the insanity claim and convicted Horn. The appellate court held that only one prong of M’Naghten need be established and reversed Horn’s conviction, as you know, but this issue illustrates the close connection between insanity claims and mens rea inquiries.
4. Given the close connection between a claim of insanity and a claim about one’s mental state, a few states have abolished a separate affirmative defense of insanity altogether. Under “the mens rea approach,” as it sometimes called, a state allows a defendant to introduce evidence of mental disease to show that he or she lacked the mental state required for the charged offense. But evidence of mental disease or defect is not otherwise admissible. In Kahler v. Kansas, 140 S.Ct. 1021 (2020), the U.S. Supreme Court considered and rejected a constitutional challenge to the mens rea approach. The defendant had argued that the Due Process Clause of the federal constitution was violated if he was punished despite a mental illness that prevented him from distinguishing right from wrong. The court held that the Constitution did not require adoption of the M’Naghten rule or any specific definition of insanity:
[J]ust decades ago Congress gave serious consideration to adopting a mens rea approach like Kansas’s as the federal insanity rule. See United States v. Pohlot (C.A.3 1987). The Department of Justice at the time favored that version of the insanity test. Perhaps more surprisingly, the American Medical Association did too…. Although Congress chose in the end to adhere to the M’Naghten rule, the debate over the bill itself reveals continuing division over the proper scope of the insanity defense.
Nor is that surprising, given the nature of the inquiry. As the American Psychiatric Association once noted, “insanity is a matter of some uncertainty.” Across both time and place, doctors and scientists have held many competing ideas about mental illness. And that is only the half of it. Formulating an insanity defense also involves choosing among theories of moral and legal culpability, themselves the subject of recurrent controversy. At the juncture between those two spheres of conflict and change, small wonder there has not been the stasis Kahler sees—with one version of the insanity defense entrenched for hundreds of years.
And it is not for the courts to insist on any single criterion going forward. We have made the point before…. Just a brief reminder: “[F]ormulating a constitutional rule would reduce, if not eliminate, [the States’] fruitful experimentation, and freeze the developing productive dialogue between law and psychiatry into a rigid constitutional mold.” Or again: In a sphere of “flux and disagreement,” with “fodder for reasonable debate about what the cognate legal and medical tests should be,” due process imposes no one view of legal insanity. Defining the precise relationship between criminal culpability and mental illness involves examining the workings of the brain, the purposes of the criminal law, the ideas of free will and responsibility. It is a project demanding hard choices among values, in a context replete with uncertainty, even at a single moment in time. And it is a project, if any is, that should be open to revision over time, as new medical knowledge emerges and as legal and moral norms evolve. Which is all to say that it is a project for state governance, not constitutional law.
We therefore decline to require that Kansas adopt an insanity test turning on a defendant’s ability to recognize that his crime was morally wrong. Contrary to Kahler’s view, Kansas takes account of mental health at both trial and sentencing. It has just not adopted the particular insanity defense Kahler would like. That choice is for Kansas to make—and, if it wishes, to remake and remake again as the future unfolds. No insanity rule in this country’s heritage or history was ever so settled as to tie a State’s hands centuries later.
Kahler v. Kansas, 140 S.Ct. at 1037.
1. [Fn. 5 by the court:] While the portion of section 35.15(2)(b) pertaining to the use of deadly physical force to avert a felony such as robbery does not contain a separate “retreat” requirement, it is clear from reading subdivisions (1) and (2) of section 35.15 together, as the statute requires, that the general “necessity” requirement in subdivision (1) applies to all uses of force under section 35.15, including the use of deadly physical force under subdivision (2)(b).
2. [Fn. 1 by the court:] For example, the “true man” doctrine basically provides that “an individual need not retreat, even if he can do so safely, where he has a reasonable belief that he is in imminent danger of death or great bodily harm, is without fault, and is in a place that he has a right to be. The rationale behind this rule comes from a policy against making a person act in a cowardly or humiliating manner.” State v. Renner, 1994 WL 501778....
3. [Fn. 1 by the Court:] Title 18 U.S.C. § 751(a) provides: “Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge or magistrate, or from the custody of an officer or employee of the United States pursuant to lawful arrest, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than \$5,000 or imprisoned not more than five years, or both; or if the custody or confinement is for extradition or by virtue of an arrest or charge of or for a misdemeanor, and prior to conviction, be fined not more than \$1,000 or imprisoned not more than one year, or both.”
4. [Fn. 3 by the Court:] Respondents asked the District Court to give the following instruction:
“Coercion which would excuse the commission of a criminal act must result from:
“1) Threathening [sic ] conduct sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm; “2) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant; “3) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and “4) The defendant committed the act to avoid the threathened [sic ] harm.”
• [Fn. 9 by the Court:] ... Our holding here is a substantive one: an essential element of the defense of duress or necessity is evidence sufficient to support a finding of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity has lost its coercive force. As a general practice, trial courts will find it saves considerable time to require testimony on this element of the affirmative defense of duress or necessity first, simply because such testimony can be heard in a fairly short time, whereas testimony going to the other necessary elements of duress or necessity may take considerably longer to present....
• | textbooks/biz/Criminal_Law/Criminal_Law%3A_An_Integrated_Approach_(Ristroph)/1.10%3A_Affirmative_Defenses.txt |
This book introduces criminal procedure law in the United States, with a focus on the “investigation” stage of the criminal justice system. Specifically, the book focuses on legal constraints placed upon police and prosecutors, constraints largely derived from Supreme Court interpretations of the Fourth, Fifth, and Sixth Amendments to the Constitution. Major topics include searches and seizures, warrants and when they are required, interrogations, witness identifications of suspects, and the right to counsel during various stages of investigation and prosecution.
At the end of the semester, students should have a solid foundation in the “black-letter law” of criminal procedure. This material is tested on the bar examination, and it is the sort of information that friends and family will expect lawyers to know, even lawyers who never practice criminal law. For example, a lawyer lacking basic familiarity with the Miranda Rule risks looking foolish at Thanksgiving dinner. In addition, the legal issues covered in this book relate to some of the most intense ongoing political and social debates in the country. The law governing stop-and-frisk procedures, for example, is not merely trivia one should learn for an exam. It affects the lives of real people. The reliability of eyewitness identifications affects the likelihood of wrongful convictions, a phenomenon persons of all political persuasions oppose. In short, policing and prosecution affect everyone in America, and an informed citizen—especially a lawyer—should understand the primary arguments raised in major controversies in criminal procedure law.
To be sure, understanding the holdings of major cases is essential to more nuanced participation in these debates, and this book devotes the bulk of its pages to Supreme Court opinions, which your authors have edited for length. (To save space, we have omitted internal citations, as well as portions of court opinions, without using ellipses to indicate our edits.) The book then aims to go beyond the information available in majority opinions, concurrences, and dissents. To do so, it includes supplementary material on developments in law and policy. For example, advances in technology raise questions about precedent concerning what counts as a “search” under Fourth Amendment law. The book also provides perspectives on the practical implications of Supreme Court decisions, perspectives often given scant attention by the Justices. For example, state courts have grappled with scientific evidence about witness reliability that has not yet been addressed in Supreme Court opinions resolving due process challenges related to identifications.
Further, in addition to helping students identify situations in which constitutional rights may have been violated, the book explores what remedies are available for different violations. For a criminal defendant, the most desirable remedy will normally be exclusion of evidence obtained though illegal means—for example, drugs found in a defendant’s car or home during an unlawful search. Contrary to common misconceptions among the general public, however, not all criminal procedure law violations result in the exclusion of evidence. Students will read the leading cases on the exclusionary rule, confronting arguments on when the remedy of exclusion—which quite often requires that a guilty person avoid conviction—is justified by the need to encourage adherence by law enforcement to the rules presented in this book concerning searches, seizures, interrogations, and so on.
Your authors have attempted to create a book that presents material clearly and does not hide the ball. Students who read assigned material should be well prepared for class, armed with knowledge of what rules the Supreme Court has announced, along with the main arguments for and against the Court’s choices.
The remainder of this Introduction consists of further effort by your authors to convince you of the importance of the material presented later in the book. Many students possess this book because they are enrolled in a required course or know that this material is tested on the bar exam. Others of you plan to practice criminal law. Still others study criminal procedure to learn more about important societal controversies. Regardless, your authors do not take your attention for granted.
Why Is Criminal Procedure So Important?
In this 1936 unanimous opinion by Chief Justice Charles Evans Hughes, the Supreme Court reviewed a criminal case from Mississippi. Students will see immediately why the actions of police, prosecutors, and judges upset the Supreme Court Justices.
Supreme Court of the United States
Ed Brown v. Mississippi
Decided Feb. 17, 1936—297 U.S. 278 (1936)
MR. CHIEF JUSTICE HUGHES delivered the [unanimous] opinion of the Court.
The question in this case is whether convictions, which rest solely upon confessions shown to have been extorted by officers of the state by brutality and violence, are consistent with the due process of law required by the Fourteenth Amendment of the Constitution of the United States.
Petitioners were indicted for the murder of one Raymond Stewart, whose death occurred on March 30, 1934. They were indicted on April 4, 1934 and were then arraigned and pleaded not guilty. Counsel were appointed by the court to defend them. Trial was begun the next morning and was concluded on the following day, when they were found guilty and sentenced to death.
Aside from the confessions, there was no evidence sufficient to warrant the submission of the case to the jury. After a preliminary inquiry, testimony as to the confessions was received over the objection of defendants’ counsel. Defendants then testified that the confessions were false and had been procured by physical torture. The case went to the jury with instructions, upon the request of defendants’ counsel, that if the jury had reasonable doubt as to the confessions having resulted from coercion, and that they were not true, they were not to be considered as evidence. On their appeal to the Supreme Court of the State, defendants assigned as error the inadmissibility of the confessions. The judgment was affirmed.
Defendants then moved in the Supreme Court of the State to arrest the judgment and for a new trial on the ground that all the evidence against them was obtained by coercion and brutality known to the court and to the district attorney, and that defendants had been denied the benefit of counsel or opportunity to confer with counsel in a reasonable manner. The motion was supported by affidavits. At about the same time, defendants filed in the Supreme Court a “suggestion of error” explicitly challenging the proceedings of the trial, in the use of the confessions and with respect to the alleged denial of representation by counsel, as violating the due process clause of the Fourteenth Amendment of the Constitution of the United States. The state court entertained the suggestion of error, considered the federal question, and decided it against defendants’ contentions. Two judges dissented. We granted a writ of certiorari.
The grounds of the decision were (1) that immunity from self-incrimination is not essential to due process of law; and (2) that the failure of the trial court to exclude the confessions after the introduction of evidence showing their incompetency, in the absence of a request for such exclusion, did not deprive the defendants of life or liberty without due process of law; and that even if the trial court had erroneously overruled a motion to exclude the confessions, the ruling would have been mere error reversible on appeal, but not a violation of constitutional right.
The opinion of the state court did not set forth the evidence as to the circumstances in which the confessions were procured. That the evidence established that they were procured by coercion was not questioned. The state court said: ‘After the state closed its case on the merits, the appellants, for the first time, introduced evidence from which it appears that the confessions were not made voluntarily but were coerced.’ There is no dispute as to the facts upon this point, and as they are clearly and adequately stated in the dissenting opinion of Judge Griffith (with whom Judge Anderson concurred), showing both the extreme brutality of the measures to extort the confessions and the participation of the state authorities, we quote this part of his opinion in full, as follows:
“The crime with which these defendants, all ignorant [Black people], are charged, was discovered about 1 o’clock p.m. on Friday, March 30, 1934. On that night one Dial, a deputy sheriff, accompanied by others, came to the home of Ellington, one of the defendants, and requested him to accompany them to the house of the deceased, and there a number of white men were gathered, who began to accuse the defendant of the crime. Upon his denial they seized him, and with the participation of the deputy they hanged him by a rope to the limb of a tree, and, having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and, still declining to accede to the demands that he confess, he was finally released, and he returned with some difficulty to his home, suffering intense pain and agony. The record of the testimony shows that the signs of the rope on his neck were plainly visible during the so-called trial. A day or two thereafter the said deputy, accompanied by another, returned to the home of the said defendant and arrested him, and departed with the prisoner towards the jail in an adjoining county, but went by a route which led into the state of Alabama; and while on the way, in that state, the deputy stopped and again severely whipped the defendant, declaring that he would continue the whipping until he confessed, and the defendant then agreed to confess to such a statement as the deputy would dictate, and he did so, after which he was delivered to jail.
“The other two defendants, Ed Brown and Henry Shields, were also arrested and taken to the same jail. On Sunday night, April 1, 1934, the same deputy, accompanied by a number of white men, one of whom was also an officer, and by the jailer, came to the jail, and the two last named defendants were made to strip and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it, and they were likewise made by the said deputy definitely to understand that the whipping would be continued unless and until they confessed, and not only confessed, but confessed in every matter of detail as demanded by those present; and in this manner the defendants confessed the crime, and, as the whippings progressed and were repeated, they changed or adjusted their confession in all particulars of detail so as to conform to the demands of their torturers. When the confessions had been obtained in the exact form and contents as desired by the mob, they left with the parting admonition and warning that, if the defendants changed their story at any time in any respect from that last stated, the perpetrators of the outrage would administer the same or equally effective treatment.
“Further details of the brutal treatment to which these helpless prisoners were subjected need not be pursued. It is sufficient to say that in pertinent respects the transcript reads more like pages torn from some medieval account than a record made within the confines of a modern civilization which aspires to an enlightened constitutional government.
“All this having been accomplished, on the next day, that is, on Monday, April 2, when the defendants had been given time to recuperate somewhat from the tortures to which they had been subjected, the two sheriffs, one of the county where the crime was committed, and the other of the county of the jail in which the prisoners were confined, came to the jail, accompanied by eight other persons, some of them deputies, there to hear the free and voluntary confession of these miserable and abject defendants. The sheriff of the county of the crime admitted that he had heard of the whipping but averred that he had no personal knowledge of it. He admitted that one of the defendants, when brought before him to confess, was limping and did not sit down, and that this particular defendant then and there stated that he had been strapped so severely that he could not sit down, and, as already stated, the signs of the rope on the neck of another of the defendants were plainly visible to all. Nevertheless the solemn farce of hearing the free and voluntary confessions was gone through with, and these two sheriffs and one other person then present were the three witnesses used in court to establish the so-called confessions, which were received by the court and admitted in evidence over the objections of the defendants duly entered of record as each of the said three witnesses delivered their alleged testimony. There was thus enough before the court when these confessions were first offered to make known to the court that they were not, beyond all reasonable doubt, free and voluntary; and the failure of the court then to exclude the confessions is sufficient to reverse the judgment, under every rule of procedure that has heretofore been prescribed, and hence it was not necessary subsequently to renew the objections by motion or otherwise.
“The spurious confessions having been obtained—and the farce last mentioned having been gone through with on Monday, April 2d—the court, then in session, on the following day, Tuesday, April 3, 1934, ordered the grand jury to reassemble on the succeeding day, April 4, 1934, at 9 o’clock, and on the morning of the day last mentioned the grand jury returned an indictment against the defendants for murder. Late that afternoon the defendants were brought from the jail in the adjoining county and arraigned, when one or more of them offered to plead guilty, which the court declined to accept, and, upon inquiry whether they had or desired counsel, they stated that they had none, and did not suppose that counsel could be of any assistance to them. The court thereupon appointed counsel, and set the case for trial for the following morning at 9 o’clock, and the defendants were returned to the jail in the adjoining county about thirty miles away.
“The defendants were brought to the courthouse of the county on the following morning, April 5th, and the so-called trial was opened, and was concluded on the next day, April 6, 1934, and resulted in a pretended conviction with death sentences. The evidence upon which the conviction was obtained was the so-called confessions. Without this evidence, a peremptory instruction to find for the defendants would have been inescapable. The defendants were put on the stand, and by their testimony the facts and the details thereof as to the manner by which the confessions were extorted from them were fully developed, and it is further disclosed by the record that the same deputy, Dial, under whose guiding hand and active participation the tortures to coerce the confessions were administered, was actively in the performance of the supposed duties of a court deputy in the courthouse and in the presence of the prisoners during what is denominated, in complimentary terms, the trial of these defendants. This deputy was put on the stand by the state in rebuttal, and admitted the whippings. It is interesting to note that in his testimony with reference to the whipping of the defendant Ellington, and in response to the inquiry as to how severely he was whipped, the deputy stated, ‘Not too much for a [Black man]; not as much as I would have done if it were left to me.’ Two others who had participated in these whippings were introduced and admitted it—not a single witness was introduced who denied it. The facts are not only undisputed, they are admitted, and admitted to have been done by officers of the state, in conjunction with other participants, and all this was definitely well known to everybody connected with the trial, and during the trial, including the state’s prosecuting attorney and the trial judge presiding.”
1. The state stresses the statement in Twining v. New Jersey, 211 U.S. 78 (1908), that “exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution,” and the statement in Snyder v. Massachusetts, 291 U.S. 97 (1934), that “the privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the state.” But the question of the right of the state to withdraw the privilege against self-incrimination is not here involved. The compulsion to which the quoted statements refer is that of the processes of justice by which the accused may be called as a witness and required to testify. Compulsion by torture to extort a confession is a different matter.
The state is free to regulate the procedure of its courts in accordance with its own conceptions of policy, unless in so doing it “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” The state may abolish trial by jury.1 It may dispense with indictment by a grand jury and substitute complaint or information. But the freedom of the state in establishing its policy is the freedom of constitutional government and is limited by the requirement of due process of law. Because a state may dispense with a jury trial, it does not follow that it may substitute trial by ordeal. The rack and torture chamber may not be substituted for the witness stand. The state may not permit an accused to be hurried to conviction under mob domination—where the whole proceeding is but a mask—without supplying corrective process. The state may not deny to the accused the aid of counsel. Nor may a state, through the action of its officers, contrive a conviction through the pretense of a trial which in truth is “but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured.” And the trial equally is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence. The due process clause requires “that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.
2. It is in this view that the further contention of the State must be considered. That contention rests upon the failure of counsel for the accused, who had objected to the admissibility of the confessions, to move for their exclusion after they had been introduced and the fact of coercion had been proved. It is a contention which proceeds upon a misconception of the nature of petitioners’ complaint. That complaint is not of the commission of mere error, but of a wrong so fundamental that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void. We are not concerned with a mere question of state practice, or whether counsel assigned to petitioners were competent or mistakenly assumed that their first objections were sufficient. In an earlier case the Supreme Court of the State had recognized the duty of the court to supply corrective process where due process of law had been denied. In Fisher v. State, 145 Miss. 116 (1926), the court said: “Coercing the supposed state’s criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief iniquity, the crowning infamy of the Star Chamber, and the Inquisition, and other similar institutions. The Constitution recognized the evils that lay behind these practices and prohibited them in this country. … The duty of maintaining constitutional rights of a person on trial for his life rises above mere rules of procedure, and wherever the court is clearly satisfied that such violations exist, it will refuse to sanction such violations and will apply the corrective.”
In the instant case, the trial court was fully advised by the undisputed evidence of the way in which the confessions had been procured. The trial court knew that there was no other evidence upon which conviction and sentence could be based. Yet it proceeded to permit conviction and to pronounce sentence. The conviction and sentence were void for want of the essential elements of due process, and the proceeding thus vitiated could be challenged in any appropriate manner. It was challenged before the Supreme Court of the State by the express invocation of the Fourteenth Amendment. That court entertained the challenge, considered the federal question thus presented, but declined to enforce petitioners’ constitutional right. The court thus denied a federal right fully established and specially set up and claimed, and the judgment must be reversed.
Notes, Comments, and Questions
As noted in the footnote we added to the Brown opinion, the Court included a statement about jury trials that is no longer accurate. States are required to provide trial by jury for crimes punishable by more than six months’ imprisonment. See Duncan v. Louisiana, 391 U.S. 145 (1968). In 1936, the Supreme Court had not yet “incorporated” many provisions from the Bill of Rights against the states, meaning that the states were free to ignore them. For purposes of this course, students should presume that constitutional provisions apply with equal force against the states and the federal government, unless instructed otherwise. One key criminal procedure provision not incorporated is the right to indictment by a grand jury. See Hurtado v. California, 110 U.S. 516 (1884). In Timbs v. Indiana, 139 S. Ct. 682 (2019), the Court unanimously held that the Excessive Fines Clause of the Eighth Amendment is incorporated against the states. In Ramos v. Louisiana, 140 S.Ct. 1390 (2020), the Court held that the Sixth Amendment requires states use only a unanimous jury verdict to convict defendants of serious offenses, setting aside a conviction based on a 10-to-2 vote. This continues the decades-long trend of incorporating the Bill of Rights through the Fourteenth Amendment.
Students may find one procedural aspect of Brown particularly upsetting, in addition to the terrible conduct that agents of the state committed against the defendants: After the defendants were convicted, they appealed to the highest court of their state, and the state court affirmed the convictions. Two dissenting members of that court set forth at length the terrible conduct—so carefully that the Supreme Court of the United States would later cut and paste much of the dissent. Whatever one’s position on theories related to federalism, one cannot avoid the conclusion that at least in this case, a state’s justice system was sorely in need of federal supervision. Throughout this course, students will notice an ongoing debate about how much Supreme Court oversight is necessary to protect Americans from police officers, prosecutors, and judges behaving badly. The Court’s assessment has changed over time, and justices serving together often disagree.
What to Look for when Reading Cases
As the semester progresses, students will learn to answer two key questions presented in every single criminal procedure case: First, were someone’s rights (usually constitutional rights) violated? Second, if so, so what?
Answering the first question requires knowledge of the Supreme Court’s decisions interpreting the Fourth, Fifth, and Sixth Amendments to the Constitution, among other provisions. For example, the Court has considered over several cases—decided over several decades—what counts as a “search” for purposes of the Fourth Amendment. It has debated what the Due Process Clauses of the Fifth and Fourteenth Amendments require of police officers conducting interrogations. And it has weighed how to protect the right to counsel guaranteed by the Sixth Amendment to all criminal defendants.
Answering the second question—“So what?”—requires knowledge of the remedies the Supreme Court has provided for violations of the rights of criminal suspects and defendants. For a defendant, the most desirable remedy is often the exclusion of evidence obtained illegally. When the “exclusionary rule” applies, evidence gained during an unlawful search or interrogation, for example, may become unavailable to prosecutors, which may lead to the dismissal of criminal charges. The proper scope of the exclusionary rule has been hotly debated for decades, and even its existence is not taken for granted by everyone on the Supreme Court. When exclusion of evidence is not available, the best remedy may be money damages, although that remedy has its own shortcomings. Students will learn the basics of when various remedies are available for violations of criminal procedure rules.
In a sense, the rules governing searches, seizures, interrogations, and so on can be considered the “substantive” law of criminal procedure. These rules constitute the bulk of most criminal procedure courses, and this one is no exception. Questions in this category include: When do police need a warrant? When must police give “Miranda warnings”? What must states provide for criminal defendants too poor to hire a lawyer?
The remedies are what one might call the “procedural” aspect of criminal procedure law. Questions in this category include: If police executing a search warrant break down someone’s door without justification, can the homeowner exclude evidence found during the ensuing search? Does the answer change if the warrant was somehow defective? When can prosecutors use confessions obtained in violation of the Miranda Rule? The portion of assigned readings explicitly devoted to remedies is far less than that given to “substantive” criminal procedure rights. Keep in mind, however, that rights without remedies are largely worthless,2 and those students who one day prosecute crimes or represent defendants will care deeply about the practical consequences of Supreme Court doctrine.
The Scope of the Criminal Justice System
Before returning to the meat of criminal procedure law, let us consider for a moment just how large and important a system is being governed by nine Justices interpreting a handful of ancient clauses.
Beginning around 1970, the United States began a massive increase in incarceration. Between 1980 and 2010, the incarceration rate more than doubled. Despite a small drop in incarceration over the past decade, as of early 2022 the United States incarcerated about 2 million people, including inmates at prisons, local jails, and juvenile facilities, among other places. This chart (released to the public domain via Wikimedia Commons) shows how the incarceration rate (essentially, the number of inmates per 100,000 U.S. residents) was relatively flat for decades through the 1960s, began rising after 1970, and then increased rapidly after 1985. The rate has decreased slightly over the past few years.
The U.S. 2021 incarceration rate was 664 per 100,000 residents, exceeding every other country in the world. The states with the highest incarceration rates in 2021 were Mississippi (1,031), Louisiana (1,094), and Oklahoma (993). The states with the lowest rates were Rhode Island (289), Vermont (288) and Massachusetts (275). Even these states have higher incarceration rates than most countries, including Iran (228), South Africa (248), Israel (234), New Zealand (188), Singapore (185), Poland (188), Jamaica (137), Iraq (126), France (93), and Ireland (72).3
The next chart (provided courtesy of The Sentencing Project) shows the raw numbers of prisoners in America. Note that this does not include inmates in jails or juvenile facilities.
Nationwide, the total prison and jail population as of December 31, 2020 was 1,691,600.4 In addition, 3,890,400 persons were under supervision—on parole or probation—creating a total correctional system population of 5,500,600.
Because states house the overwhelming bulk of U.S. prisoners, state budgets fund the overwhelming bulk of U.S. correctional expenses. In 1985—just before the American prison population began its sharp increase—states spent a combined \$6.7 billion on corrections. By 1990, the cost had risen to \$16.9 billion. It was \$36.4 billion in 2000, \$51.4 billion in 2010, and \$56.6 billion in 2019.5
The next chart (provided courtesy of the Prison Policy Initiative) shows where incarcerated women are housed and what offenses led them to confinement.
[The PPI also has a chart entitled “The Whole Pie,” which covers all incarcerated persons, male and female. Although we lack permission to include the chart in this book, students may (and should) find it online.]
The likelihood of imprisonment is not distributed evenly among different groups of Americans. Women constitute about half of the total U.S. population but only 7 percent of the total prison population. Racial disparities are also stark. In 2020, state and federal prisons housed (out of a total of 1,182,166 inmates) 389,500 Black inmates (33 percent of the total), 358,900 white inmates (30 percent of the total), and 275,300 Hispanic inmates (23 percent of the total).6 According to Census data taken around the same time (April 1, 2020), 76 percent of Americans described themselves as white alone (no other race), 13 percent as Black or African American alone, 3 percent as two or more races, and 18.5 percent as Hispanic or Latino.7 Although the demographic definitions—particularly for deciding who counts as Hispanic—used in various surveys are not always identical, the results are clear. Black and Hispanic Americans are significantly overrepresented among prisoners.
Despite the high U.S. incarceration rate, most Americans will never serve time. Instead, the majority of Americans encounter the justice system through their interactions with police officers. U.S. law enforcement agencies employ about 665,000 officers at the local, state, and federal level. That works out to about one officer for every 500 Americans. In 2019, officers performed about 10 million arrests. As was noted for incarceration, arrest rates exhibit disparities by race and sex. Of those arrested in 2019, 69.4 percent were white, and 26.6 percent were black. Males constituted 72.5 percent of those arrested in 2019. Young men are especially likely to be arrested.8
When suspects are arrested and prosecuted, states often provide legal counsel because the defendants otherwise could not afford it. The per capita expense on indigent defense varies tremendously among states. For example, in 2017 Wisconsin spent \$86 million, or \$14.83 per resident. That same year Texas spent \$37 million, or \$1.31 per resident.
A Few Recent Cases
We will return now to the discussion we set aside after reading Brown v. Mississippi.
“Yes, yes,” one might say, “the criminal justice system is important. As a nation we spend immense sums on police, prosecution, and prisons. And back in 1934, some goons in Mississippi abused criminal defendants, which required intervention by the Supreme Court. What about today?”
This is a fair question; otherwise, we would not have placed it in the mouths of our hypothetical students. We expect that by the end of the semester, few if any students will question whether police and prosecutors still require judicial oversight. The amount and proper form of that oversight will almost surely remain contested—indeed, the Justices themselves contest these issues every year—but the principle is likely to win near unanimous assent. To assuage skepticism without delay, however, we will present some evidence now.
In 2013, the State of California freed Kash Delano Register, whom the state had imprisoned for 34 years for a murder he did not commit.9 Mr. Register had been convicted on the basis of false identification testimony, and the lawyers who won his release produced proof that police and prosecutors had concealed from Register’s trial defense team evidence of his innocence, including reports of eyewitnesses who would have contradicted the testimony of prosecution witnesses, along with evidence of how police had used threats of unrelated criminal prosecution to pressure the witnesses against Register. Absent the work of students and faculty at Loyola Law School in Los Angeles, Register might remain incarcerated today. Prosecutors opposed his release until 2013. In 2016, the Los Angeles City Council approved a \$16.7 million settlement payment to Register.10 The city has paid tens of millions of dollars in other recent settlements related to police conduct.11
In 2012, the State of Missouri released George Allen, Jr., whom the state had imprisoned for 30 years for a St. Louis rape and murder he did not commit.12 Although prosecutors could not explain how Allen could have travelled from his University City home to the murder scene—St. Louis was paralyzed that day by a 20-inch snowstorm—a jury eventually convicted Allen on the basis of his confession. Decades after his conviction, new lawyers for Allen—from the Bryan Cave law firm and the Innocence Project—produced evidence that police had elicited a false confession from Allen, who was mentally ill. Missouri courts found that prosecutors withheld exculpatory evidence, including lab results, fingerprint records, and information about bizarre interrogation tactics such as hypnosis of a key witness. Allen died in 2016, and the City of St. Louis and Allen’s family settled his civil rights lawsuit in 2018 for \$14 million.
The National Registry of Exonerations, maintained by the University of Michigan, lists 3,176 exonerations, representing “more than 27,200 years lost.”13 Because it covers only exonerations, it does not include cases in which misconduct is uncovered in time to prevent a wrongful conviction.
In 2015, the Wall Street Journal reported that America’s “10 cities with the largest police departments paid out \$248.7 million” in 2014 in settlements and court judgements in police misconduct cases.14 Students should keep in mind that because so much misconduct cannot be remedied through monetary damages, numbers like these understate the problem.
Chicago has settled several multi-million-dollar cases in recent years. Examples include: “A one-time death row inmate brutally beaten by police: \$6.1 million. An unarmed man fatally shot by an officer as he lay on the ground: \$4.1 million.”15 Another involved an officer who “posted messages on his Facebook page falsely calling [a] teen a drug dealer and criminal” and officers handcuffing this same teen without cause. (Settlement around \$500,000.) More recent cases include “a police officer [who] pointed a gun at [the plaintiff’s] 3-year-old daughter’s chest during a 2013 raid of the family’s Chicago home” and a man who spent about 20 years in prison after being framed.16
As the Baltimore Sun noted—in its 2014 report of how the “city has paid about \$5.7 million since 2011 over lawsuits claiming that police officers brazenly beat up alleged suspects”—the “perception that officers are violent can poison the relationship between residents and police.”17 The newspaper observed:
“Over … four years, more than 100 people have won court judgments or settlements related to allegations of brutality and civil rights violations. Victims include a 15-year-old boy riding a dirt bike, a 26-year-old pregnant accountant who had witnessed a beating, a 50-year-old woman selling church raffle tickets, a 65-year-old church deacon rolling a cigarette and an 87-year-old grandmother aiding her wounded grandson.”
In multiple jurisdictions, class action lawsuits about unlawful strip searches have yielded large payments. In 2010, the Cook County (Illinois) Board of Commissioners agreed to a \$55 million settlement with suspects stripped-searched at Cook County Jail. New York City reached a \$50 million settlement in 2001 and another one for \$33 million in 2010, both related to searches in city jails such as Rikers Island. Similar settlements (for smaller amounts) have been reached in places such as Kern County, California; Burlington County, New Jersey; and Washington, D.C. Massachusetts officials settled a suit concerning the Western Massachusetts Regional Women’s Correctional Center, agreeing to prohibit male guards from continuing their practice of videotaping the strip searches of female inmates.
Less sensational issues (nonetheless important to those involved) include the ongoing debate over “stop-and-frisk” tactics nationwide, in addition to racial profiling of motorists. These practices affect persons whose involvement with the criminal justice system might otherwise be fairly minimal. In New York City, a federal court found that NYPD officers violated the Fourth Amendment by performing unreasonable searches and seizures and further found that police violated the Equal Protection Clause of Fourteenth Amendment by stopping and frisking New Yorkers in a racially discriminatory manner.18 In Missouri, annual reports by the Attorney General regularly find racial disparities in vehicle stops.19 According to the 2017 report, Black motorists were far more likely to be stopped, despite police finding contraband less often when stopping Black motorists than when stopping white motorists. “African-Americans represent 10.9% of the driving-age population but 18.7% of all traffic stops …. The contraband hit rate for whites was 35.5%, compared with 32.9% for blacks and 27.9% for Hispanics. This means that, on average, searches of African-Americans and Hispanics are less likely than searches of whites to result in the discovery of contraband.”
In sum, the incidence of police and prosecutorial misconduct is not limited to dusty case files from the old Confederacy.
Meanwhile, crime remains a serious problem, one America has struggled with since colonial times. Since the 1800s, the United States has had a much higher murder rate than European countries otherwise similar to us in measures of economic power and educational attainment. Then, beginning around 1965, the U.S. homicide rate increased dramatically.20 Although the increase was not uniform (different decades saw different trends, and different locations experienced trends differently), the United States as a whole suffered a big increase in crime from the mid-1960s through the early-1990s, with the nationwide homicide rate peaking at around 10 per 100,000 persons. Since then, crime has dropped significantly, returning over twenty years to what was observed in the early 1960s.21 By 2000, the homicide rate had dropped to around 5.5 per 100,000, which is close to the rates observed over the subsequent two decades.22 (Time will tell whether the rising homicide rates observed during 2020 and 2021—that is, during first years of the COVID pandemic—represent an aberration or a new normal.) In other words, American crime rates remain well above those of Western Europe, Canada, and Australia, but they are far better than American rates of a generation ago. The sharp increase in crime between the 1960s and 1990s may explain in part the rapid increase in American incarceration, as politicians offered “tough-on-crime” solutions. The causes of the huge increase in crime beginning around 1965, as well as of the subsequent decrease, are hotly disputed.23 In any event, crime remains an important political and social issue in America. Court decisions about how police may behave will be better understood if given broader social context. For example, judicial decisions that prevent the convictions of undisputedly guilty defendants may be unpopular among voters, and voters elect the politicians who appoint and confirm Supreme Court Justices. Further, Justices may recognize their relative lack of expertise in the fields of policing and criminology, and they may hesitate to mandate practices (or to prohibit practices) without thoughtfully considering how their decisions could affect ongoing national efforts to fight crime. The debate over how much the Court should meddle in the affairs of police departments is a thread that runs through the course material.
Outline of the Book
After the first chapter, the book will proceed as follows: First, we will examine the Fourth Amendment, beginning with considering what counts as a “search” in Fourth Amendment cases. After studying the concepts of probable cause and reasonable suspicion, we will discuss warrants, including what police must do to obtain them, when they are required, and when the Supreme Court has said police may conduct searches and seizures without warrants. Having spent about a third of the book on searches, we will turn to seizures, including arrests and “stop and frisk.”
Around the halfway point of the book, we will move from the Fourth Amendment and begin our study of interrogations, examining how the Court has used the Fifth, Sixth, and Fourteenth Amendments to regulate police questioning of suspects. This portion of the book will cover the Due Process Clauses, the Miranda Rule, and regulations arising from the right to counsel.
Having studied “substantive” criminal procedure rules at some length—learning what the Court has told police officers they can and cannot do—we will turn to the remedies available when these rules are broken. Primarily, we will focus on the exclusionary rule, a judicially-created remedy that prevents prosecutors from using certain evidence obtained illegally. We will also consider when money damages are available as a remedy for violations of criminal procedure rules.
Near the end of the book, we will study the criminal defendant’s right to the assistance of counsel, which is guaranteed by the Sixth Amendment. In particular, we will learn when the state must provide counsel and how effective counsel must be to satisfy the constitutional guarantee.
Then we will study identification procedures, including how police can avoid mistaken identifications by victims and other witnesses, along with the limited requirements that have been imposed by the Supreme Court.
As the book ends, we will consider some new challenges presented by terrorism, such as torture, and by technological advances, such as electronic surveillance.
A Note on the Text
Universities exist to promote the search for knowledge and to transmit human knowledge to future generations. Public universities in particular have a tradition of sharing knowledge with the broader populace, not merely their own students, and they also have a tradition of providing excellent education at affordable prices. This book exists to further these important missions of the University of Missouri. Designed by MU professors, it suits the pedagogical preferences of its authors. Available at no cost, it reduces students’ cost of attendance.
In addition, this book is available under a Creative Commons license, meaning that anyone—inside or outside the university—can use it to study criminal procedure and can share it at will. Faculty at other universities are free to adopt it, and some have done so.
The project was inspired, in part, by an article one of your authors published in 2016, calling on law schools and law faculty to create free casebooks for students.24 It turned out that calling upon others to create books did not in itself produce these books. Your authors have since become the change they wished to see in legal education. Because the book is relatively new—and is the first casebook produced by either of your authors—student feedback is especially welcome. Future students will benefit from any improvements.
To increase the book’s value as a free resource, the text when possible contains links to sources at which students can learn more at no cost. For example, Supreme Court cases are freely available online, and anyone who wishes to read the full unedited version of any case may do so. (Even when a link has not been provided, when naming cases we usually have included a full citation, which should allow students easy access to free versions of the text.) Your authors have edited cases so that reading assignments would be kept reasonable for a one-semester course; however, there is always more to learn.
In addition, this book aims to go beyond providing a “nutshell” summary of American criminal procedure law. From time to time, particularly when assigned cases raise issues about which there are important ongoing debates in American society, the readings will investigate these issues in greater depth than might be possible were the text confined to opinions written by Supreme Court Justices. More than one hundred years ago, Roscoe Pound—then dean of the University of Nebraska College of Law, later dean at Harvard—published the great legal realist article “Law in Books and Law in Action.”25 If this book is successful, students will spend time considering the practical effects—the law in action—of the opinions contained in Supreme Court reporters.
The Key Constitutional Language
In this course, students will focus on Supreme Court cases arising from a handful of constitutional provisions. Four Amendments to the Constitution of the United States are reprinted here (three in full, one in part) for your convenience:
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Amendment XIV
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
* * *
Savvy students will have noticed that the constitutional provisions reprinted above lack definitions for terms such as “unreasonable,” “search,” “seizure,” “probable cause,” “put in jeopardy,” “due process of law,” “confronted with the witnesses against him,” and “Assistance of Counsel.” The remainder of this book is, essentially, a summary of the Supreme Court’s ongoing efforts to provide the missing definitions. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/01%3A_Introduction/1.01%3A_Chapter_1_-_What_Is_This_Book.txt |
With the readings for this chapter, we begin our exploration of the Fourth Amendment to the Constitution of the United States. The Fourth Amendment is short, just 54 words, and it reflects the desires of those who wrote and ratified it to protect Americans against unreasonable government intrusion into their lives. The Amendment mentions some of the more important aspects of a person’s life—her house, her papers, her effects, even her “person,” that is, her body—and declares that government agents may not unreasonably search or seize those things. Here is the text:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
These words have inspired arguments about their meanings. For example, what counts as a “house” and thereby merits protection from unreasonable searches? Is it limited to physical buildings in which people live, or is some area outside the structure included? We will see later that the Court eventually defined the concept of “curtilage,” which is an outdoor area that the Court treats as part of the “house.”
Over the coming weeks, students will encounter vigorous debate over the meaning of “reasonable.” When is it reasonable for a police officer to stop and frisk a pedestrian about whom the officer has suspicion? When is it reasonable for police to search cars without warrants? For now, we will set aside the concept of reasonableness for one simple reason: Before something can be an “unreasonable search,” it must first be a “search.” The cases assigned for this chapter concern the definition of “search” for purposes of Fourth Amendment jurisprudence. (Similarly, before something can be an “unreasonable seizure,” it must first be a “seizure.” We will consider the definition of “seizure” later in the semester.)
In the first case, Katz v. United States, the Justices attempt to bring their definition of “search” into the modern world.
Supreme Court of the United States
Charles Katz v. United States
Decided Dec. 18, 1967—389 U.S. 347
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner was convicted in the District Court for the Southern District of California under an eight-count indictment charging him with transmitting wagering information by telephone from Los Angeles to Miami and Boston in violation of a federal statute. At trial the Government was permitted, over the petitioner’s objection, to introduce evidence of the petitioner’s end of telephone conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls. In affirming his conviction, the Court of Appeals rejected the contention that the recordings had been obtained in violation of the Fourth Amendment, because “[t]here was no physical entrance into the area occupied by [the petitioner].” We granted certiorari in order to consider the constitutional questions thus presented.
The petitioner had phrased those questions as follows:
“A. Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of the user of the booth.
“B. Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violative of the Fourth Amendment to the United States Constitution.”
We decline to adopt this formulation of the issues. In the first place, the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase “constitutionally protected area.” Secondly, the Fourth Amendment cannot be translated into a general constitutional “right to privacy.” That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. But the protection of a person’s general right to privacy—his right to be let alone by other people—is, like the protection of his property and of his very life, left largely to the law of the individual States.
Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization of the telephone booth from which the petitioner placed his calls. The petitioner has strenuously argued that the booth was a “constitutionally protected area.” The Government has maintained with equal vigor that it was not. But this effort to decide whether or not a given “area,” viewed in the abstract, is “constitutionally protected” deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye—it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.
The Government contends, however, that the activities of its agents in this case should not be tested by Fourth Amendment requirements, for the surveillance technique they employed involved no physical penetration of the telephone booth from which the petitioner placed his calls. It is true that the absence of such penetration was at one time thought to foreclose further Fourth Amendment inquiry, Olmstead v. United States, 277 U.S. 438; Goldman v. United States, 316 U.S. 129, 134—136, for that Amendment was thought to limit only searches and seizures of tangible property. But “(t)he premise that property interests control the right of the Government to search and seize has been discredited.” Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements overheard without any “technical trespass under … local property law.” Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people—and not simply “areas”—against unreasonable searches and seizures it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.
We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the “trespass” doctrine there enunciated can no longer be regarded as controlling. The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a “search and seizure” within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.
Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures. The government agents here ignored “the procedure of antecedent justification … that is central to the Fourth Amendment,” a procedure that we hold to be a constitutional precondition of the kind of electronic surveillance involved in this case. Because the surveillance here failed to meet that condition, and because it led to the petitioner’s conviction, the judgment must be reversed.
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
Mr. Justice HARLAN, concurring.
I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is an area where, like a home, a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.
As the Court’s opinion states, “the Fourth Amendment protects people, not places.” The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a “place.” My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected” because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.
The critical fact in this case is that “(o)ne who occupies it, (a telephone booth) shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume” that his conversation is not being intercepted. The point is not that the booth is “accessible to the public” at other times, but that it is a temporarily private place whose momentary occupants’ expectations of freedom from intrusion are recognized as reasonable.
Finally, I do not read the Court’s opinion to declare that no interception of a conversation one-half of which occurs in a public telephone booth can be reasonable in the absence of a warrant. As elsewhere under the Fourth Amendment, warrants are the general rule, to which the legitimate needs of law enforcement may demand specific exceptions. It will be time enough to consider any such exceptions when an appropriate occasion presents itself, and I agree with the Court that this is not one.
Mr. Justice BLACK, dissenting.
If I could agree with the Court that eavesdropping carried on by electronic means (equivalent to wiretapping) constitutes a “search” or “seizure,” I would be happy to join the Court’s opinion.
My basic objection is twofold: (1) I do not believe that the words of the Amendment will bear the meaning given them by today’s decision, and (2) I do not believe that it is the proper role of this Court to rewrite the Amendment in order “to bring it into harmony with the times” and thus reach a result that many people believe to be desirable.
While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses on such nebulous subjects as privacy, for me the language of the Amendment is the crucial place to look in construing a written document such as our Constitution. The Fourth Amendment says that
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The first clause protects “persons, houses, papers, and effects, against unreasonable searches and seizures ….” These words connote the idea of tangible things with size, form, and weight, things capable of being searched, seized, or both. The second clause of the Amendment still further establishes its Framers’ purpose to limit its protection to tangible things by providing that no warrants shall issue but those “particularly describing the place to be searched, and the persons or things to be seized.” A conversation overheard by eavesdropping, whether by plain snooping or wiretapping, is not tangible and, under the normally accepted meanings of the words, can neither be searched nor seized. In addition, the language of the second clause indicates that the Amendment refers not only to something tangible so it can be seized but to something already in existence so it can be described. Yet the Court’s interpretation would have the Amendment apply to overhearing future conversations which by their very nature are nonexistent until they take place. How can one “describe” a future conversation, and, if one cannot, how can a magistrate issue a warrant to eavesdrop one in the future? It is argued that information showing what is expected to be said is sufficient to limit the boundaries of what later can be admitted into evidence; but does such general information really meet the specific language of the Amendment which says “particularly describing”? Rather than using language in a completely artificial way, I must conclude that the Fourth Amendment simply does not apply to eavesdropping.
Tapping telephone wires, of course, was an unknown possibility at the time the Fourth Amendment was adopted. But eavesdropping (and wiretapping is nothing more than eavesdropping by telephone) was, as even the majority opinion in Berger, supra, recognized, “an ancient practice which at common law was condemned as a nuisance. In those days the eavesdropper listened by naked ear under the eaves of houses or their windows, or beyond their walls seeking out private discourse.” There can be no doubt that the Framers were aware of this practice, and if they had desired to outlaw or restrict the use of evidence obtained by eavesdropping, I believe that they would have used the appropriate language to do so in the Fourth Amendment. They certainly would not have left such a task to the ingenuity of language-stretching judges. No one, it seems to me, can read the debates on the Bill of Rights without reaching the conclusion that its Framers and critics well knew the meaning of the words they used, what they would be understood to mean by others, their scope and their limitations. Under these circumstances it strikes me as a charge against their scholarship, their common sense and their candor to give to the Fourth Amendment’s language the eavesdropping meaning the Court imputes to it today.
I do not deny that common sense requires and that this Court often has said that the Bill of Rights’ safeguards should be given a liberal construction. This principle, however, does not justify construing the search and seizure amendment as applying to eavesdropping or the “seizure” of conversations. The Fourth Amendment was aimed directly at the abhorred practice of breaking in, ransacking and searching homes and other buildings and seizing people’s personal belongings without warrants issued by magistrates. The Amendment deserves, and this Court has given it, a liberal construction in order to protect against warrantless searches of buildings and seizures of tangible personal effects. But until today this Court has refused to say that eavesdropping comes within the ambit of Fourth Amendment restrictions.
Since I see no way in which the words of the Fourth Amendment can be construed to apply to eavesdropping, that closes the matter for me. In interpreting the Bill of Rights, I willingly go as far as a liberal construction of the language takes me, but I simply cannot in good conscience give a meaning to words which they have never before been thought to have and which they certainly do not have in common ordinary usage. I will not distort the words of the Amendment in order to “keep the Constitution up to date” or “to bring it into harmony with the times.” It was never meant that this Court have such power, which in effect would make us a continuously functioning constitutional convention.
With this decision the Court has completed, I hope, its rewriting of the Fourth Amendment, which started only recently when the Court began referring incessantly to the Fourth Amendment not so much as a law against unreasonable searches and seizures as one to protect an individual’s privacy. By clever word juggling the Court finds it plausible to argue that language aimed specifically at searches and seizures of things that can be searched and seized may, to protect privacy, be applied to eavesdropped evidence of conversations that can neither be searched nor seized. Few things happen to an individual that do not affect his privacy in one way or another. Thus, by arbitrarily substituting the Court’s language, designed to protect privacy, for the Constitution’s language, designed to protect against unreasonable searches and seizures, the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court’s broadest concept of privacy.
The Fourth Amendment protects privacy only to the extent that it prohibits unreasonable searches and seizures of “persons, houses, papers, and effects.” No general right is created by the Amendment so as to give this Court the unlimited power to hold unconstitutional everything which affects privacy. Certainly the Framers, well acquainted as they were with the excesses of governmental power, did not intend to grant this Court such omnipotent lawmaking authority as that. The history of governments proves that it is dangerous to freedom to repose such powers in courts.
For these reasons I respectfully dissent.
Notes, Comments, and Questions
In Katz, the Court made clear that a physical trespass is not essential to a Fourth Amendment search. In subsequent chapters, students will explore the Court’s efforts to flesh out this ruling, applying it to contexts such as police officers flying over houses, police officers using thermal imaging devices to examine a home, and police searching garbage left outside for collection.
In our next case, however, the Court reminds readers that although trespass is not necessary to a Fourth Amendment search, it can be sufficient. That is, although the line of cases following Katz remains essential reading for a student of criminal procedure, not every Fourth Amendment search necessarily invades a person’s reasonable expectation of privacy. Forty-five years after the Court decided Katz, the Justices handed down United States v. Jones, reiterating the importance of the law of trespass to the Court’s vision of the Fourth Amendment.
Supreme Court of the United States
United States v. Antoine Jones
Decided Jan. 23, 2012—565 U.S. 400
Justice SCALIA delivered the opinion of the Court.
We decide whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.
I
In 2004 respondent Antoine Jones, owner and operator of a nightclub in the District of Columbia, came under suspicion of trafficking in narcotics and was made the target of an investigation by a joint FBI and Metropolitan Police Department task force.
[A]gents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot. Over the next 28 days, the Government used the device to track the vehicle’s movements, and once had to replace the device’s battery. By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4-week period.
The Government ultimately obtained a multiple-count indictment charging Jones with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base. Before trial, Jones filed a motion to suppress evidence obtained through the GPS device. The District Court granted the motion only in part, suppressing the data obtained while the vehicle was parked in the garage adjoining Jones’s residence. It held the remaining data admissible, because “‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’”
The Government introduced at trial the GPS-derived locational data, which connected Jones to the alleged conspirators’ stash house that contained \$850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of cocaine base. The jury returned a guilty verdict, and the District Court sentenced Jones to life imprisonment.
The United States Court of Appeals for the District of Columbia Circuit reversed the conviction because of admission of the evidence obtained by warrantless use of the GPS device which, it said, violated the Fourth Amendment. The D.C. Circuit denied the Government’s petition for rehearing en banc, with four judges dissenting. We granted certiorari.
A
The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment. We hold that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a “search.”
It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765), is a “case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’ ” with regard to search and seizure. In that case, Lord Camden expressed in plain terms the significance of property rights in search-and-seizure analysis:
“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.”
The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous.
Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century. Thus, in Olmstead v. United States, 277 U.S. 438, we held that wiretaps attached to telephone wires on the public streets did not constitute a Fourth Amendment search because “[t]here was no entry of the houses or offices of the defendants.”
Our later cases, of course, have deviated from that exclusively property-based approach. In Katz v. United States, we said that “the Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan’s concurrence in that case, which said that a violation occurs when government officers violate a person’s “reasonable expectation of privacy.”
The Government contends that the Harlan standard shows that no search occurred here, since Jones had no “reasonable expectation of privacy” in the area of the Jeep accessed by Government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all. But we need not address the Government’s contentions, because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. Katz did not repudiate that understanding. Less than two years later the Court upheld defendants’ contention that the Government could not introduce against them conversations between other people obtained by warrantless placement of electronic surveillance devices in their homes. The opinion rejected the dissent’s contention that there was no Fourth Amendment violation “unless the conversational privacy of the homeowner himself is invaded.” Alderman v. United States, 394 U.S. 165, 176 (1969). “[W]e [do not] believe that Katz, by holding that the Fourth Amendment protects persons and their private conversations, was intended to withdraw any of the protection which the Amendment extends to the home….” Id., at 180.
More recently, in Soldal v. Cook County, 506 U.S. 56 (1992), the Court unanimously rejected the argument that although a “seizure” had occurred “in a ‘technical’ sense” when a trailer home was forcibly removed, no Fourth Amendment violation occurred because law enforcement had not “invade[d] the [individuals’] privacy.” Katz, the Court explained, established that “property rights are not the sole measure of Fourth Amendment violations,” but did not “snuf[f] out the previously recognized protection for property.” As Justice Brennan explained in his concurrence in Knotts, Katz did not erode the principle “that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” We have embodied that preservation of past rights in our very definition of “reasonable expectation of privacy” which we have said to be an expectation “that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Katz did not narrow the Fourth Amendment’s scope.
The Government contends that several of our post-Katz cases foreclose the conclusion that what occurred here constituted a search. It relies principally on two cases in which we rejected Fourth Amendment challenges to “beepers,” electronic tracking devices that represent another form of electronic monitoring. The first case, Knotts, upheld against Fourth Amendment challenge the use of a “beeper” that had been placed in a container of chloroform, allowing law enforcement to monitor the location of the container. We said that there had been no infringement of Knotts’ reasonable expectation of privacy since the information obtained—the location of the automobile carrying the container on public roads, and the location of the off-loaded container in open fields near Knotts’ cabin—had been voluntarily conveyed to the public. But as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. The holding in Knotts addressed only the former, since the latter was not at issue. The beeper had been placed in the container before it came into Knotts’ possession, with the consent of the then-owner. Knotts did not challenge that installation, and we specifically declined to consider its effect on the Fourth Amendment analysis. Knotts would be relevant, perhaps, if the Government were making the argument that what would otherwise be an unconstitutional search is not such where it produces only public information. The Government does not make that argument, and we know of no case that would support it.
The second “beeper” case, United States v. Karo, 468 U.S. 705 (1984), does not suggest a different conclusion. There we addressed the question left open by Knotts, whether the installation of a beeper in a container amounted to a search or seizure. As in Knotts, at the time the beeper was installed the container belonged to a third party, and it did not come into possession of the defendant until later. Thus, the specific question we considered was whether the installation “with the consent of the original owner constitute[d] a search or seizure … when the container is delivered to a buyer having no knowledge of the presence of the beeper.” We held not. The Government, we said, came into physical contact with the container only before it belonged to the defendant Karo; and the transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade Karo’s privacy. That conclusion is perfectly consistent with the one we reach here. Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper’s presence, even though it was used to monitor the container’s location. Cf. On Lee v. United States, 343 U.S. 747 (1952) (no search or seizure where an informant, who was wearing a concealed microphone, was invited into the defendant’s business). Jones, who possessed the Jeep at the time the Government trespassorily inserted the information-gathering device, is on much different footing.
The Government also points to our exposition in New York v. Class, 475 U.S. 106 (1986), that “[t]he exterior of a car … is thrust into the public eye, and thus to examine it does not constitute a ‘search.’” That statement is of marginal relevance here since, as the Government acknowledges, “the officers in this case did more than conduct a visual inspection of respondent’s vehicle.” By attaching the device to the Jeep, officers encroached on a protected area. In Class itself we suggested that this would make a difference, for we concluded that an officer’s momentary reaching into the interior of a vehicle did constitute a search.
Finally, the Government’s position gains little support from our conclusion in Oliver v. United States, 466 U.S. 170 (1984), that officers’ information-gathering intrusion on an “open field” did not constitute a Fourth Amendment search even though it was a trespass at common law. Quite simply, an open field, unlike the curtilage of a home, is not one of those protected areas enumerated in the Fourth Amendment. The Government’s physical intrusion on such an area—unlike its intrusion on the “effect” at issue here—is of no Fourth Amendment significance.
B
The concurrence begins by accusing us of applying “18th-century tort law.” That is a distortion. What we apply is an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted. The concurrence does not share that belief. It would apply exclusively Katz’s reasonable-expectation-of-privacy test, even when that eliminates rights that previously existed.
The concurrence [by Justice Alito] faults our approach for “present[ing] particularly vexing problems” in cases that do not involve physical contact, such as those that involve the transmission of electronic signals. We entirely fail to understand that point. For unlike the concurrence, which would make Katz the exclusive test, we do not make trespass the exclusive test. Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.
In fact, it is the concurrence’s insistence on the exclusivity of the Katz test that needlessly leads us into “particularly vexing problems” in the present case. This Court has to date not deviated from the understanding that mere visual observation does not constitute a search. We accordingly held in Knotts that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Thus, even assuming that the concurrence is correct to say that “[t]raditional surveillance” of Jones for a 4–week period “would have required a large team of agents, multiple vehicles, and perhaps aerial assistance,” our cases suggest that such visual observation is constitutionally permissible. It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.
And answering it affirmatively leads us needlessly into additional thorny problems. The concurrence posits that “relatively short-term monitoring of a person’s movements on public streets” is okay, but that “the use of longer term GPS monitoring in investigations of most offenses” is no good. That introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4–week investigation is “surely” too long and why a drug-trafficking conspiracy involving substantial amounts of cash and narcotics is not an “extraordinary offens[e]” which may permit longer observation. What of a 2–day monitoring of a suspected purveyor of stolen electronics? Or of a 6–month monitoring of a suspected terrorist? We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.
The judgment of the Court of Appeals for the D.C. Circuit is affirmed.
Justice SOTOMAYOR, concurring.
I join the Court’s opinion because I agree that a search within the meaning of the Fourth Amendment occurs, at a minimum, “[w]here, as here, the Government obtains information by physically intruding on a constitutionally protected area.” “[W]hen the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.”
Nonetheless, as Justice ALITO notes, physical intrusion is now unnecessary to many forms of surveillance. With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones. In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance. But “[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.” As Justice ALITO incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Under that rubric, I agree with Justice ALITO that, at the very least, “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”
In cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention. GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such records and efficiently mine them for information years into the future. And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility.”
Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.”
I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques. I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance.”
More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.
Resolution of these difficult questions in this case is unnecessary, however, because the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision. I therefore join the majority’s opinion.
Justice ALITO, with whom Justice GINSBURG, Justice BREYER, and Justice KAGAN join, concurring in the judgment.
This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movements for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-century tort law.
This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.
I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.
A
The Fourth Amendment prohibits “unreasonable searches and seizures,” and the Court makes very little effort to explain how the attachment or use of the GPS device fits within these terms. The Court does not contend that there was a seizure … and here there was none.
The Court does claim that the installation and use of the GPS constituted a search, but this conclusion is dependent on the questionable proposition that these two procedures cannot be separated for purposes of Fourth Amendment analysis. If these two procedures are analyzed separately, it is not at all clear from the Court’s opinion why either should be regarded as a search. It is clear that the attachment of the GPS device was not itself a search; if the device had not functioned or if the officers had not used it, no information would have been obtained. And the Court does not contend that the use of the device constituted a search either. On the contrary, the Court accepts the holding in United States v. Knotts, 460 U.S. 276, that the use of a surreptitiously planted electronic device to monitor a vehicle’s movements on public roads did not amount to a search.
The Court argues—and I agree—that “we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’” But it is almost impossible to think of late–18th-century situations that are analogous to what took place in this case. (Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner?1) The Court’s theory seems to be that the concept of a search, as originally understood, comprehended any technical trespass that led to the gathering of evidence, but we know that this is incorrect. At common law, any unauthorized intrusion on private property was actionable but a trespass on open fields, as opposed to the “curtilage” of a home, does not fall within the scope of the Fourth Amendment because private property outside the curtilage is not part of a “hous[e]” within the meaning of the Fourth Amendment.
B
The Court’s reasoning in this case is very similar to that in the Court’s early decisions involving wiretapping and electronic eavesdropping, namely, that a technical trespass followed by the gathering of evidence constitutes a search. In the early electronic surveillance cases, the Court concluded that a Fourth Amendment search occurred when private conversations were monitored as a result of an “unauthorized physical penetration into the premises occupied” by the defendant. Silverman v. United States, 365 U.S. 505, 509 (1961). In Silverman, police officers listened to conversations in an attached home by inserting a “spike mike” through the wall that this house shared with the vacant house next door. This procedure was held to be a search because the mike made contact with a heating duct on the other side of the wall and thus “usurp[ed] … an integral part of the premises.”
By contrast, in cases in which there was no trespass, it was held that there was no search. Thus, in Olmstead v. United States, 277 U.S. 438 (1928), the Court found that the Fourth Amendment did not apply because “[t]he taps from house lines were made in the streets near the houses.” Similarly, the Court concluded that no search occurred in Goldman v. United States, 316 U.S. 129 (1942), where a “detectaphone” was placed on the outer wall of defendant’s office for the purpose of overhearing conversations held within the room.
This trespass-based rule was repeatedly criticized. In Olmstead, Justice Brandeis wrote that it was “immaterial where the physical connection with the telephone wires was made.”
Katz v. United States, 389 U.S. 347 (1967), finally did away with the old approach, holding that a trespass was not required for a Fourth Amendment violation. [T]he Katz Court, “repudiate[ed]” the old doctrine and held that “[t]he fact that the electronic device employed … did not happen to penetrate the wall of the booth can have no constitutional significance.” What mattered, the Court held, was whether the conduct at issue “violated the privacy upon which [the defendant] justifiably relied while using the telephone booth.”
Under this approach, as the Court later put it when addressing the relevance of a technical trespass, “an actual trespass is neither necessary nor sufficient to establish a constitutional violation.”
[T]he majority is hard pressed to find support in post-Katz cases for its trespass-based theory.
III
Disharmony with a substantial body of existing case law is only one of the problems with the Court’s approach in this case.
I will briefly note four others. First, the Court’s reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation). Attaching such an object is generally regarded as so trivial that it does not provide a basis for recovery under modern tort law. But under the Court’s reasoning, this conduct may violate the Fourth Amendment. By contrast, if long-term monitoring can be accomplished without committing a technical trespass—suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car—the Court’s theory would provide no protection.
Second, the Court’s approach leads to incongruous results. If the police attach a GPS device to a car and use the device to follow the car for even a brief time, under the Court’s theory, the Fourth Amendment applies. But if the police follow the same car for a much longer period using unmarked cars and aerial assistance, this tracking is not subject to any Fourth Amendment constraints.
In the present case, the Fourth Amendment applies, the Court concludes, because the officers installed the GPS device after respondent’s wife, to whom the car was registered, turned it over to respondent for his exclusive use. But if the GPS had been attached prior to that time, the Court’s theory would lead to a different result. The Court proceeds on the assumption that respondent “had at least the property rights of a bailee,” but a bailee may sue for a trespass to chattel only if the injury occurs during the term of the bailment. So if the GPS device had been installed before respondent’s wife gave him the keys, respondent would have no claim for trespass—and, presumably, no Fourth Amendment claim either.
Third, under the Court’s theory, the coverage of the Fourth Amendment may vary from State to State. If the events at issue here had occurred in a community property State or a State that has adopted the Uniform Marital Property Act, respondent would likely be an owner of the vehicle, and it would not matter whether the GPS was installed before or after his wife turned over the keys. In non-community-property States, on the other hand, the registration of the vehicle in the name of respondent’s wife would generally be regarded as presumptive evidence that she was the sole owner.
Fourth, the Court’s reliance on the law of trespass will present particularly vexing problems in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked. For example, suppose that the officers in the present case had followed respondent by surreptitiously activating a stolen vehicle detection system that came with the car when it was purchased. Would the sending of a radio signal to activate this system constitute a trespass to chattels? Trespass to chattels has traditionally required a physical touching of the property. In recent years, courts have wrestled with the application of this old tort in cases involving unwanted electronic contact with computer systems, and some have held that even the transmission of electrons that occurs when a communication is sent from one computer to another is enough. But may such decisions be followed in applying the Court’s trespass theory? Assuming that what matters under the Court’s theory is the law of trespass as it existed at the time of the adoption of the Fourth Amendment, do these recent decisions represent a change in the law or simply the application of the old tort to new situations?
A
The Katz expectation-of-privacy test avoids the problems and complications noted above, but it is not without its own difficulties. It involves a degree of circularity, and judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person to which the Katz test looks. In addition, the Katz test rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But technology can change those expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.
On the other hand, concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions. This is what ultimately happened with respect to wiretapping. After Katz, Congress did not leave it to the courts to develop a body of Fourth Amendment case law governing that complex subject. Instead, Congress promptly enacted a comprehensive statute and since that time, the regulation of wiretapping has been governed primarily by statute and not by case law.
B
Recent years have seen the emergence of many new devices that permit the monitoring of a person’s movements. In some locales, closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen.
Perhaps most significant, cell phones and other wireless devices now permit wireless carriers to track and record the location of users—and as of June 2011, it has been reported, there were more than 322 million wireless devices in use in the United States. For older phones, the accuracy of the location information depends on the density of the tower network, but new “smart phones,” which are equipped with a GPS device, permit more precise tracking. For example, when a user activates the GPS on such a phone, a provider is able to monitor the phone’s location and speed of movement and can then report back real-time traffic conditions after combining (“crowdsourcing”) the speed of all such phones on any particular road. Similarly, phone-location-tracking services are offered as “social” tools, allowing consumers to find (or to avoid) others who enroll in these services. The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.
V
In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. The surveillance at issue in this case—constant monitoring of the location of a vehicle for four weeks—would have required a large team of agents, multiple vehicles, and perhaps aerial assistance. Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap. In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.
To date, however, Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes. The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.
Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4–week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant. We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques.
For these reasons, I conclude that the lengthy monitoring that occurred in this case constituted a search under the Fourth Amendment. I therefore agree with the majority that the decision of the Court of Appeals must be affirmed.
Notes, Comments, and Questions
Although the Jones Court held that Katz is not the sole touchstone of Fourth Amendment “search” analysis, it also made clear that Katz has not in any way been overruled. When considering whether certain state action constitutes a “search,” students should consider both whether it satisfies the criteria set forth in Katz and whether it satisfies the more recent standard articulated in Jones. A person complaining about state action need not satisfy both standards; either one will do.
As Justice Alito noted in his concurrence, “the regulation of wiretapping has been governed primarily by statute and not by case law.” This is the first example of what will become a common theme in the course. Put simply, much of criminal procedure—like criminal law more generally—is not regulated by constitutional law. Witness identification procedures, for example, are largely left to the discretion of police departments, with minimal oversight by courts. Once states meet bare minimum standards for providing the assistance of counsel for indigent defendants, they decide how much additional money to devote to the effort. States decide how many police officers they want to patrol various neighborhoods, how strictly to enforce various criminal laws, and how much to punish convicted defendants. As the semester progresses, students should pay careful attention to the policy decisions not dictated by Supreme Court doctrine. Those are decisions that, after students become lawyers, they may have the opportunity to guide.
The majority in Jones relies on the trespassory nature of the police contact with the jeep to find a search rather than a Katz-style “reasonable expectation of privacy” analysis. As Justice Sotomayor predicted, though, police surveillance of GPS-enabled smartphones without trespassory invasion has quickly become a reality, and police can now access this data without a physical trespass. Moreover, police can obtain GPS information about all cell phone users in a particular area. Consider the “reverse location search warrant.” This warrant allows police, without touching anyone’s phone, to gather cell phone GPS data on all phones within the vicinity of a crime. Is this tactic a search under Jones? Under Katz? Why or why not? Consider the reasonable expectations of privacy for private individuals who are in the general locality of a crime by happenstance.
What result if the police do not trespass to place the GPS, but instead local ordinances or state legislation requires vehicles to be outfitted with GPS? Consider a Chicago ordinance that requires all food trucks to be outfitted with GPS and allows the city to access that GPS data for six months without a warrant.
One final note: In 2018, the Supreme Court decided Carpenter v. United States, 138 S. Ct. 2206 (2018), a case concerning “whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.” Students should consider now (and perhaps write down) how they would answer this question, using the reasoning set forth in Katz and Jones. In the next few chapters, students will read several cases in which the Court applies the doctrines of Katz and Jones to different scenarios. Then, in Chapter 5, the Court’s decision in Carpenter is presented. Will the Court’s reasoning match yours? | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.01%3A_Chapter_2_-_What_Is_a_Search_The_Basics.txt |
In the material assigned for this chapter, we begin applying the rules set forth in Katz and Jones to specific activities. As the cases make clear, the word “search” for purposes of the Fourth Amendment does not have its normal English meaning, that is, something to the effect of “try to find something” or “look for something.” Instead, the Supreme Court has created a legal term of art. Some activities that one might normally describe with the word “search” (such as looking through someone’s garbage in the hope of finding something interesting) turn out not to count as “searches” in Fourth Amendment jurisprudence. Students should consider when reading these cases whether the Court’s reasoning is persuasive. Further, they should consider whether a unifying set of principles can be found that (at least most of the time) allows one to predict whether a given activity will count as a “search.” Absent such a set of principles, it may appear that the Court’s doctrine in this area is somewhat arbitrary.
Supreme Court of the United States
California v. Billy Greenwood
Decided May 16, 1988—486 U.S. 35
Justice WHITE delivered the opinion of the Court.
The issue here is whether the Fourth Amendment prohibits the warrantless search and seizure of garbage left for collection outside the curtilage of a home. We conclude, in accordance with the vast majority of lower courts that have addressed the issue, that it does not.
I
In early 1984, Investigator Jenny Stracner of the Laguna Beach Police Department received information indicating that respondent Greenwood might be engaged in narcotics trafficking. Stracner sought to investigate this information by conducting a surveillance of Greenwood’s home.
On April 6, 1984, Stracner asked the neighborhood’s regular trash collector to pick up the plastic garbage bags that Greenwood had left on the curb in front of his house and to turn the bags over to her without mixing their contents with garbage from other houses. The trash collector cleaned his truck bin of other refuse, collected the garbage bags from the street in front of Greenwood’s house, and turned the bags over to Stracner. The officer searched through the rubbish and found items indicative of narcotics use. She recited the information that she had gleaned from the trash search in an affidavit in support of a warrant to search Greenwood’s home.
Police officers encountered both respondents at the house later that day when they arrived to execute the warrant. The police discovered quantities of cocaine and hashish during their search of the house. Respondents were arrested on felony narcotics charges. They subsequently posted bail.
The police continued to receive reports of many late-night visitors to the Greenwood house. On May 4, Investigator Robert Rahaeuser obtained Greenwood’s garbage from the regular trash collector in the same manner as had Stracner. The garbage again contained evidence of narcotics use.
Rahaeuser secured another search warrant for Greenwood’s home based on the information from the second trash search. The police found more narcotics and evidence of narcotics trafficking when they executed the warrant. Greenwood was again arrested.
II
The warrantless search and seizure of the garbage bags left at the curb outside the Greenwood house would violate the Fourth Amendment only if respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable. Respondents do not disagree with this standard.
They assert, however, that they had, and exhibited, an expectation of privacy with respect to the trash that was searched by the police: The trash, which was placed on the street for collection at a fixed time, was contained in opaque plastic bags, which the garbage collector was expected to pick up, mingle with the trash of others, and deposit at the garbage dump. The trash was only temporarily on the street, and there was little likelihood that it would be inspected by anyone.
It may well be that respondents did not expect that the contents of their garbage bags would become known to the police or other members of the public. An expectation of privacy does not give rise to Fourth Amendment protection, however, unless society is prepared to accept that expectation as objectively reasonable.
Here, we conclude that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents’ trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage “in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it,” respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.
Furthermore, as we have held, the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public. Hence, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”
The judgment of the California Court of Appeal is therefore reversed, and this case is remanded for further proceedings not inconsistent with this opinion.
Justice KENNEDY took no part in the consideration or decision of this case.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
Every week for two months, and at least once more a month later, the Laguna Beach police clawed through the trash that respondent Greenwood left in opaque, sealed bags on the curb outside his home. Complete strangers minutely scrutinized their bounty, undoubtedly dredging up intimate details of Greenwood’s private life and habits. The intrusions proceeded without a warrant, and no court before or since has concluded that the police acted on probable cause to believe Greenwood was engaged in any criminal activity.
Scrutiny of another’s trash is contrary to commonly accepted notions of civilized behavior. I suspect, therefore, that members of our society will be shocked to learn that the Court, the ultimate guarantor of liberty, deems unreasonable our expectation that the aspects of our private lives that are concealed safely in a trash bag will not become public.
I
“A container which can support a reasonable expectation of privacy may not be searched, even on probable cause, without a warrant.” Thus, as the Court observes, if Greenwood had a reasonable expectation that the contents of the bags that he placed on the curb would remain private, the warrantless search of those bags violated the Fourth Amendment.
The Framers of the Fourth Amendment understood that “unreasonable searches” of “paper[s] and effects”—no less than “unreasonable searches” of “person[s] and houses”—infringe privacy. As early as 1878, this Court acknowledged that the contents of “[l]etters and sealed packages … in the mail are as fully guarded from examination and inspection … as if they were retained by the parties forwarding them in their own domiciles.” In short, so long as a package is “closed against inspection,” the Fourth Amendment protects its contents, “wherever they may be,” and the police must obtain a warrant to search it just “as is required when papers are subjected to search in one’s own household.”
With the emergence of the reasonable-expectation-of-privacy analysis, see Katz v. United States, we have reaffirmed this fundamental principle. Accordingly, we have found a reasonable expectation of privacy in the contents of a 200–pound “double-locked footlocker,” a “comparatively small, unlocked suitcase,” a “totebag,” and “packages wrapped in green opaque plastic,”
Our precedent, therefore, leaves no room to doubt that had respondents been carrying their personal effects in opaque, sealed plastic bags—identical to the ones they placed on the curb—their privacy would have been protected from warrantless police intrusion. So far as Fourth Amendment protection is concerned, opaque plastic bags are every bit as worthy as “packages wrapped in green opaque plastic” and “double-locked footlocker[s].”
II
Respondents deserve no less protection just because Greenwood used the bags to discard rather than to transport his personal effects. Their contents are not inherently any less private, and Greenwood’s decision to discard them, at least in the manner in which he did, does not diminish his expectation of privacy.
A trash bag, like any of the above-mentioned containers, “is a common repository for one’s personal effects” and, even more than many of them, is “therefore … inevitably associated with the expectation of privacy.” A single bag of trash testifies eloquently to the eating, reading, and recreational habits of the person who produced it. A search of trash, like a search of the bedroom, can relate intimate details about sexual practices, health, and personal hygiene. Like rifling through desk drawers or intercepting phone calls, rummaging through trash can divulge the target’s financial and professional status, political affiliations and inclinations, private thoughts, personal relationships, and romantic interests. It cannot be doubted that a sealed trash bag harbors telling evidence of the “intimate activity associated with the ‘sanctity of a man’s home and the privacies of life,’” which the Fourth Amendment is designed to protect.
In evaluating the reasonableness of Greenwood’s expectation that his sealed trash bags would not be invaded, the Court has held that we must look to “understandings that are recognized and permitted by society.” Most of us, I believe, would be incensed to discover a meddler—whether a neighbor, a reporter, or a detective—scrutinizing our sealed trash containers to discover some detail of our personal lives. That was, quite naturally, the reaction to the sole incident on which the Court bases its conclusion that “snoops” and the like defeat the expectation of privacy in trash. When a tabloid reporter examined then-Secretary of State Henry Kissinger’s trash and published his findings, Kissinger was “really revolted” by the intrusion and his wife suffered “grave anguish.” The public response roundly condemning the reporter demonstrates that society not only recognized those reactions as reasonable, but shared them as well. Commentators variously characterized his conduct as “a disgusting invasion of personal privacy,” and contrary to “the way decent people behave in relation to each other.”
Had Greenwood flaunted his intimate activity by strewing his trash all over the curb for all to see, or had some nongovernmental intruder invaded his privacy and done the same, I could accept the Court’s conclusion that an expectation of privacy would have been unreasonable. Similarly, had police searching the city dump run across incriminating evidence that, despite commingling with the trash of others, still retained its identity as Greenwood’s, we would have a different case. But all that Greenwood “exposed … to the public,” were the exteriors of several opaque, sealed containers. Until the bags were opened by police, they hid their contents from the public’s view every bit as much as did Chadwick’s double-locked footlocker and Robbins’ green, plastic wrapping. Faithful application of the warrant requirement does not require police to “avert their eyes from evidence of criminal activity that could have been observed by any member of the public.” Rather, it only requires them to adhere to norms of privacy that members of the public plainly acknowledge.
The mere possibility that unwelcome meddlers might open and rummage through the containers does not negate the expectation of privacy in their contents any more than the possibility of a burglary negates an expectation of privacy in the home; or the possibility of a private intrusion negates an expectation of privacy in an unopened package; or the possibility that an operator will listen in on a telephone conversation negates an expectation of privacy in the words spoken on the telephone. “What a person … seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” We have therefore repeatedly rejected attempts to justify a State’s invasion of privacy on the ground that the privacy is not absolute.
Nor is it dispositive that “respondents placed their refuse at the curb for the express purpose of conveying it to a third party, … who might himself have sorted through respondents’ trash or permitted others, such as the police, to do so.” In the first place, Greenwood can hardly be faulted for leaving trash on his curb when a county ordinance commanded him to do so and prohibited him from disposing of it in any other way. Unlike in other circumstances where privacy is compromised, Greenwood could not “avoid exposing personal belongings … by simply leaving them at home.” More importantly, even the voluntary relinquishment of possession or control over an effect does not necessarily amount to a relinquishment of a privacy expectation in it. Were it otherwise, a letter or package would lose all Fourth Amendment protection when placed in a mailbox or other depository with the “express purpose” of entrusting it to the postal officer or a private carrier; those bailees are just as likely as trash collectors (and certainly have greater incentive) to “sor[t] through” the personal effects entrusted to them, “or permi[t] others, such as police to do so.” Yet, it has been clear for at least 110 years that the possibility of such an intrusion does not justify a warrantless search by police in the first instance.
III
In holding that the warrantless search of Greenwood’s trash was consistent with the Fourth Amendment, the Court paints a grim picture of our society. It depicts a society in which local authorities may command their citizens to dispose of their personal effects in the manner least protective of the “sanctity of [the] home and the privacies of life,” and then monitor them arbitrarily and without judicial oversight—a society that is not prepared to recognize as reasonable an individual’s expectation of privacy in the most private of personal effects sealed in an opaque container and disposed of in a manner designed to commingle it imminently and inextricably with the trash of others. The American society with which I am familiar “chooses to dwell in reasonable security and freedom from surveillance,” and is more dedicated to individual liberty and more sensitive to intrusions on the sanctity of the home than the Court is willing to acknowledge.
I dissent.
Notes, Comments, and Questions
The Greenwood Court determined there was no search because there was no objective expectation of privacy in trash placed by the curb; the narcotics evidence in that trash was readily accessible to the public, placed at the curb for conveyance to a third party, and police are not expected to “avert their eyes” from publicly observable criminal behavior. Should there be a different outcome if the illegality of the contents is not so readily observable?
Consider the case of a tax preparer suspected of defrauding the government. The IRS agents collect his curbside trash for weeks only to discover the trash bags are filled with documents shredded into 5/32 inch strips. After reconstructing the documents (take a moment to consider the time and effort necessary to do so), the IRS has sufficient probable cause for a search warrant. Search or no search? Why or why not?
Consider police who extract DNA evidence from curbside trash. Does a defendant have a reasonable expectation of privacy in his DNA evidence on cups, bottles, or condoms placed in the trash on the curb? Several recent murders have been solved using a combination genetic ancestry research (to narrow the suspect pool) and DNA from trash to zero in on the defendant. [ABC News]
When interpreting its own law (such as a state constitution), a state court can recognize a “search” where courts applying the federal constitution would not. What are some arguments for and against states using different definitions of “search” than the Supreme Court has used when interpreting the Fourth Amendment? See State v. Morris, 680 A.2d 90, 92–93 (Vt 1996) (“One may accept the possibility that one’s garbage is susceptible to invasion by raccoons or other scavengers, and yet at the same time reasonably expect that the government will not systematically examine one’s trash bags in the hopes of finding evidence of criminal conduct.”).
* * *
In Katz, the Court decided that not all Fourth Amendment “searches” involve physical intrusion into an area in which someone enjoys a reasonable expectation of privacy. In the next case, the Court applies this principle to the use of thermal imaging technology.
Supreme Court of the United States
Danny Lee Kyllo v. United States
Decided June 11, 2001—533 U.S. 27
Justice SCALIA delivered the opinion of the Court.
This case presents the question whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a “search” within the meaning of the Fourth Amendment.
I
In 1991 Agent William Elliott of the United States Department of the Interior came to suspect that marijuana was being grown in the home belonging to petitioner Danny Kyllo, part of a triplex on Rhododendron Drive in Florence, Oregon. Indoor marijuana growth typically requires high-intensity lamps. In order to determine whether an amount of heat was emanating from petitioner’s home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect infrared radiation, which virtually all objects emit but which is not visible to the naked eye. The imager converts radiation into images based on relative warmth—black is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images. The scan of Kyllo’s home took only a few minutes and was performed from the passenger seat of Agent Elliott’s vehicle across the street from the front of the house and also from the street in back of the house. The scan showed that the roof over the garage and a side wall of petitioner’s home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the triplex. Agent Elliott concluded that petitioner was using halide lights to grow marijuana in his house, which indeed he was. Based on tips from informants, utility bills, and the thermal imaging, a Federal Magistrate Judge issued a warrant authorizing a search of petitioner’s home, and the agents found an indoor growing operation involving more than 100 plants. Petitioner was indicted on one count of manufacturing marijuana. He unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea.
The Court of Appeals for the Ninth Circuit remanded the case for an evidentiary hearing regarding the intrusiveness of thermal imaging. On remand the District Court found that the Agema 210 “is a non-intrusive device which emits no rays or beams and shows a crude visual image of the heat being radiated from the outside of the house”; it “did not show any people or activity within the walls of the structure”; “[t]he device used cannot penetrate walls or windows to reveal conversations or human activities”; and “[n]o intimate details of the home were observed.” Based on these findings, the District Court upheld the validity of the warrant that relied in part upon the thermal imaging, and reaffirmed its denial of the motion to suppress. A divided Court of Appeals initially reversed, but that opinion was withdrawn and the panel (after a change in composition) affirmed, with Judge Noonan dissenting. The court held that petitioner had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home and even if he had, there was no objectively reasonable expectation of privacy because the imager “did not expose any intimate details of Kyllo’s life,” only “amorphous ‘hot spots’ on the roof and exterior wall.” We granted certiorari.
II
“At the very core” of the Fourth Amendment “stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.
On the other hand, the antecedent question whether or not a Fourth Amendment “search” has occurred is not so simple under our precedent. The permissibility of ordinary visual surveillance of a home used to be clear because, well into the 20th century, our Fourth Amendment jurisprudence was tied to common-law trespass. Visual surveillance was unquestionably lawful because “‘the eye cannot by the laws of England be guilty of a trespass.’” We have since decoupled violation of a person’s Fourth Amendment rights from trespassory violation of his property, but the lawfulness of warrantless visual surveillance of a home has still been preserved. As we observed in California v. Ciraolo, 476 U.S. 207 (1986), “[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.”
One might think that the new validating rationale would be that examining the portion of a house that is in plain public view, while it is a “search” despite the absence of trespass, is not an “unreasonable” one under the Fourth Amendment. But in fact we have held that visual observation is no “search” at all—perhaps in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional. In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States. As Justice Harlan’s oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. We have subsequently applied this principle to hold that a Fourth Amendment search does not occur—even when the explicitly protected location of a house is concerned—unless “the individual manifested a subjective expectation of privacy in the object of the challenged search,” and “society [is] willing to recognize that expectation as reasonable.” We have applied this test in holding that it is not a search for the police to use a pen register at the phone company to determine what numbers were dialed in a private home, and we have applied the test on two different occasions in holding that aerial surveillance of private homes and surrounding areas does not constitute a search.
The present case involves officers on a public street engaged in more than naked-eye surveillance of a home. We have previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage point, if any, is too much. While we upheld enhanced aerial photography of an industrial complex in Dow Chemical, we noted that we found “it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened.” 476 U.S. 227 (1986).
III
It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology. The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.
The Katz test—whether the individual has an expectation of privacy that society is prepared to recognize as reasonable—has often been criticized as circular, and hence subjective and unpredictable. While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences is at issue, in the case of the search of the interior of homes—the prototypical and hence most commonly litigated area of protected privacy—there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area” constitutes a search—at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search.
The Government maintains, however, that the thermal imaging must be upheld because it detected “only heat radiating from the external surface of the house.” But just as a thermal imager captures only heat emanating from a house, so also a powerful directional microphone picks up only sound emanating from a house—and a satellite capable of scanning from many miles away would pick up only visible light emanating from a house. We rejected such a mechanical interpretation of the Fourth Amendment in Katz, where the eavesdropping device picked up only sound waves that reached the exterior of the phone booth. Reversing that approach would leave the homeowner at the mercy of advancing technology—including imaging technology that could discern all human activity in the home. While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.
The Government also contends that the thermal imaging was constitutional because it did not “detect private activities occurring in private areas.” The Fourth Amendment’s protection of the home has never been tied to measurement of the quality or quantity of information obtained. In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.
Limiting the prohibition of thermal imaging to “intimate details” would not only be wrong in principle; it would be impractical in application, failing to provide “a workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment.” To begin with, there is no necessary connection between the sophistication of the surveillance equipment and the “intimacy” of the details that it observes—which means that one cannot say (and the police cannot be assured) that use of the relatively crude equipment at issue here will always be lawful. The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider “intimate”; and a much more sophisticated system might detect nothing more intimate than the fact that someone left a closet light on. We could not, in other words, develop a rule approving only that through-the-wall surveillance which identifies objects no smaller than 36 by 36 inches, but would have to develop a jurisprudence specifying which home activities are “intimate” and which are not. And even when (if ever) that jurisprudence were fully developed, no police officer would be able to know in advance whether his through-the-wall surveillance picks up “intimate” details—and thus would be unable to know in advance whether it is constitutional.
We have said that the Fourth Amendment draws “a firm line at the entrance to the house.” That line, we think, must be not only firm but also bright—which requires clear specification of those methods of surveillance that require a warrant. While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no “significant” compromise of the homeowner’s privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward.
Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.
Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant issued in this case was supported by probable cause—and if not, whether there is any other basis for supporting admission of the evidence that the search pursuant to the warrant produced.
The judgment of the Court of Appeals is reversed; the case is remanded for further proceedings consistent with this opinion.
Justice STEVENS, with whom THE CHIEF JUSTICE, Justice O’CONNOR, and Justice KENNEDY join, dissenting.
There is, in my judgment, a distinction of constitutional magnitude between “through-the-wall surveillance” that gives the observer or listener direct access to information in a private area, on the one hand, and the thought processes used to draw inferences from information in the public domain, on the other hand. The Court has crafted a rule that purports to deal with direct observations of the inside of the home, but the case before us merely involves indirect deductions from “off-the-wall” surveillance, that is, observations of the exterior of the home. Those observations were made with a fairly primitive thermal imager that gathered data exposed on the outside of petitioner’s home but did not invade any constitutionally protected interest in privacy. Moreover, I believe that the supposedly “bright-line” rule the Court has created in response to its concerns about future technological developments is unnecessary, unwise, and inconsistent with the Fourth Amendment.
I
There is no need for the Court to craft a new rule to decide this case, as it is controlled by established principles from our Fourth Amendment jurisprudence. One of those core principles, of course, is that “searches and seizures inside a home without a warrant are presumptively unreasonable.” But it is equally well settled that searches and seizures of property in plain view are presumptively reasonable. “‘What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.’” That is the principle implicated here.
While the Court “take[s] the long view” and decides this case based largely on the potential of yet-to-be-developed technology that might allow “through-the-wall surveillance,” this case involves nothing more than off-the-wall surveillance by law enforcement officers to gather information exposed to the general public from the outside of petitioner’s home. All that the infrared camera did in this case was passively measure heat emitted from the exterior surfaces of petitioner’s home; all that those measurements showed were relative differences in emission levels, vaguely indicating that some areas of the roof and outside walls were warmer than others. As still images from the infrared scans show, no details regarding the interior of petitioner’s home were revealed. Unlike an x-ray scan, or other possible “through-the-wall” techniques, the detection of infrared radiation emanating from the home did not accomplish “an unauthorized physical penetration into the premises,” nor did it “obtain information that it could not have obtained by observation from outside the curtilage of the house.”
Indeed, the ordinary use of the senses might enable a neighbor or passerby to notice the heat emanating from a building, particularly if it is vented, as was the case here. Additionally, any member of the public might notice that one part of a house is warmer than another part or a nearby building if, for example, rainwater evaporates or snow melts at different rates across its surfaces. Such use of the senses would not convert into an unreasonable search if, instead, an adjoining neighbor allowed an officer onto her property to verify her perceptions with a sensitive thermometer. Nor, in my view, does such observation become an unreasonable search if made from a distance with the aid of a device that merely discloses that the exterior of one house, or one area of the house, is much warmer than another. Nothing more occurred in this case.
Thus, the notion that heat emissions from the outside of a dwelling are a private matter implicating the protections of the Fourth Amendment (the text of which guarantees the right of people “to be secure in their … houses” against unreasonable searches and seizures (emphasis added)) is not only unprecedented but also quite difficult to take seriously. Heat waves, like aromas that are generated in a kitchen, or in a laboratory or opium den, enter the public domain if and when they leave a building. A subjective expectation that they would remain private is not only implausible but also surely not “one that society is prepared to recognize as ‘reasonable.’”
To be sure, the homeowner has a reasonable expectation of privacy concerning what takes place within the home, and the Fourth Amendment’s protection against physical invasions of the home should apply to their functional equivalent. But the equipment in this case did not penetrate the walls of petitioner’s home, and while it did pick up “details of the home” that were exposed to the public, it did not obtain “any information regarding the interior of the home.” In the Court’s own words, based on what the thermal imager “showed” regarding the outside of petitioner’s home, the officers “concluded” that petitioner was engaging in illegal activity inside the home. It would be quite absurd to characterize their thought processes as “searches,” regardless of whether they inferred (rightly) that petitioner was growing marijuana in his house, or (wrongly) that “the lady of the house [was taking] her daily sauna and bath.” In either case, the only conclusions the officers reached concerning the interior of the home were at least as indirect as those that might have been inferred from the contents of discarded garbage, or, as in this case, subpoenaed utility records. For the first time in its history, the Court assumes that an inference can amount to a Fourth Amendment violation.
Notwithstanding the implications of today’s decision, there is a strong public interest in avoiding constitutional litigation over the monitoring of emissions from homes, and over the inferences drawn from such monitoring. Just as “the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public,” so too public officials should not have to avert their senses or their equipment from detecting emissions in the public domain such as excessive heat, traces of smoke, suspicious odors, odorless gases, airborne particulates, or radioactive emissions, any of which could identify hazards to the community. In my judgment, monitoring such emissions with “sense-enhancing technology,” and drawing useful conclusions from such monitoring, is an entirely reasonable public service.
On the other hand, the countervailing privacy interest is at best trivial. After all, homes generally are insulated to keep heat in, rather than to prevent the detection of heat going out, and it does not seem to me that society will suffer from a rule requiring the rare homeowner who both intends to engage in uncommon activities that produce extraordinary amounts of heat, and wishes to conceal that production from outsiders, to make sure that the surrounding area is well insulated. The interest in concealing the heat escaping from one’s house pales in significance to “the chief evil against which the wording of the Fourth Amendment is directed,” the “physical entry of the home.”
Since what was involved in this case was nothing more than drawing inferences from off-the-wall surveillance, rather than any “through-the-wall” surveillance, the officers’ conduct did not amount to a search and was perfectly reasonable.
II
Instead of trying to answer the question whether the use of the thermal imager in this case was even arguably unreasonable, the Court has fashioned a rule that is intended to provide essential guidance for the day when “more sophisticated systems” gain the “ability to ‘see’ through walls and other opaque barriers.” The newly minted rule encompasses “obtaining [1] by sense-enhancing technology [2] any information regarding the interior of the home [3] that could not otherwise have been obtained without physical intrusion into a constitutionally protected area … [4] at least where (as here) the technology in question is not in general public use.” In my judgment, the Court’s new rule is at once too broad and too narrow, and is not justified by the Court’s explanation for its adoption. As I have suggested, I would not erect a constitutional impediment to the use of sense-enhancing technology unless it provides its user with the functional equivalent of actual presence in the area being searched.
Despite the Court’s attempt to draw a line that is “not only firm but also bright,” the contours of its new rule are uncertain because its protection apparently dissipates as soon as the relevant technology is “in general public use.” Yet how much use is general public use is not even hinted at by the Court’s opinion, which makes the somewhat doubtful assumption that the thermal imager used in this case does not satisfy that criterion. In any event, putting aside its lack of clarity, this criterion is somewhat perverse because it seems likely that the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available.
The application of the Court’s new rule to “any information regarding the interior of the home,” is unnecessarily broad. If it takes sensitive equipment to detect an odor that identifies criminal conduct and nothing else, the fact that the odor emanates from the interior of a home should not provide it with constitutional protection. The criterion, moreover, is too sweeping in that information “regarding” the interior of a home apparently is not just information obtained through its walls, but also information concerning the outside of the building that could lead to (however many) inferences “regarding” what might be inside. Under that expansive view, I suppose, an officer using an infrared camera to observe a man silently entering the side door of a house at night carrying a pizza might conclude that its interior is now occupied by someone who likes pizza, and by doing so the officer would be guilty of conducting an unconstitutional “search” of the home.
Because the new rule applies to information regarding the “interior” of the home, it is too narrow as well as too broad. Clearly, a rule that is designed to protect individuals from the overly intrusive use of sense-enhancing equipment should not be limited to a home. If such equipment did provide its user with the functional equivalent of access to a private place—such as, for example, the telephone booth involved in Katz, or an office building—then the rule should apply to such an area as well as to a home.
The final requirement of the Court’s new rule, that the information “could not otherwise have been obtained without physical intrusion into a constitutionally protected area,” also extends too far as the Court applies it. As noted, the Court effectively treats the mental process of analyzing data obtained from external sources as the equivalent of a physical intrusion into the home. As I have explained, however, the process of drawing inferences from data in the public domain should not be characterized as a search.
III
Although the Court is properly and commendably concerned about the threats to privacy that may flow from advances in the technology available to the law enforcement profession, it has unfortunately failed to heed the tried and true counsel of judicial restraint. Instead of concentrating on the rather mundane issue that is actually presented by the case before it, the Court has endeavored to craft an all-encompassing rule for the future. It would be far wiser to give legislators an unimpeded opportunity to grapple with these emerging issues rather than to shackle them with prematurely devised constitutional constraints.
I respectfully dissent.
Notes, Comments, and Questions
The Kyllo majority reasoned in 2001 (in a case about police conduct that occurred in 1991) that the use of thermal imaging constituted a search because the technology was “not in general public use.”
Today, however, the general public has many uses for thermal imaging, from HVAC performance testing to hunting to wildlife rescue to evaluating the performance of kitchen devices.
Agema Infrared Systems, the Swedish corporation that manufactured the “Agema Thermovision 210” at issue in Kyllo, was acquired by FLIR Systems Inc. in 1998. Headquartered in Oregon, FLIR now sells a \$200 thermal imaging camera (the “FLIR ONE”) that can attach to a smartphone, with fancier versions available for higher prices. According to the FLIR product page, one can use the FLIR ONE to “[f]ind problems around the home fast, like where you’re losing heat, how your insulation’s holding up, electrical problems, and water damage – all of which are point-and-shoot easy to find.” It also suggests, “See in the dark and explore the natural world safely with the FLIR ONE. Watch animals in their natural habitat and even use it to find your lost pet … or what they might have left behind in the yard.” Another suggested use from the advertisement: “Detecting tiny variations in heat means that you can see in total darkness, create new kinds of art, and discover new things about your world every day… or help your child with their science fair experiment.”
Consider a police officer who uses such a device to investigate a suspected drug-grower’s home. He sees images consistent with growing drugs. He shows the images to a judge, who grants a search warrant. Officers find drugs in the house, and prosecutors have charged the owner with drug crimes. Search or no search? Why or why not?
In January 2020, the City Counsel of Bessemer, Michigan voted to purchase “an odor-detecting device as a means of addressing growing complaints about marijuana odor.” The device is called a “Nasal Ranger,” and the company that sells it describes it as “the ‘state-of-the-art’ in field olfactometry for confidently measuring and quantifying odor strength in the ambient air.” According to St. Croix Sensory, Inc., “The portable Nasal Ranger Field Olfactometer determines ambient odor Dilution-to-Threshold (D/T) concentration objectively with your trained nose.” If a Bessmer police officer stands on a public sidewalk and uses the Nasal Ranger to detect marijuana odors emanating from a house, is that a search? Why or why not?
* * *
In his majority opinion in United States v. Jones, Justice Scalia distinguished the facts before the Court in that case from those of a previous case—involving a “beeper”—upon which the government attempted to rely in its effort to justify placing a GPS device on a vehicle. Here is the “beeper” case.
Supreme Court of the United States
United States v. Leroy Carlton Knotts
Decided March 2, 1983—460 U.S. 276
REHNQUIST, Justice.
A beeper is a radio transmitter, usually battery operated, which emits periodic signals that can be picked up by a radio receiver. In this case, a beeper was placed in a five gallon drum containing chloroform purchased by one of respondent’s codefendants. By monitoring the progress of a car carrying the chloroform Minnesota law enforcement agents were able to trace the can of chloroform from its place of purchase in Minneapolis, Minnesota to respondent’s secluded cabin near Shell Lake, Wisconsin. The issue presented by the case is whether such use of a beeper violated respondent’s rights secured by the Fourth Amendment to the United States Constitution.
I
Respondent and two codefendants were charged in the United States District Court for the District of Minnesota with conspiracy to manufacture controlled substances, including but not limited to methamphetamine.
Suspicion attached to this trio when the 3M Company, which manufactures chemicals in St. Paul, notified a narcotics investigator for the Minnesota Bureau of Criminal Apprehension that Armstrong, a former 3M employee, had been stealing chemicals which could be used in manufacturing illicit drugs. Visual surveillance of Armstrong revealed that after leaving the employ of 3M Company, he had been purchasing similar chemicals from the Hawkins Chemical Company in Minneapolis. The Minnesota narcotics officers observed that after Armstrong had made a purchase, he would deliver the chemicals to codefendant Petschen.
With the consent of the Hawkins Chemical Company, officers installed a beeper inside a five gallon container of chloroform, one of the so-called “precursor” chemicals used to manufacture illicit drugs. Hawkins agreed that when Armstrong next purchased chloroform, the chloroform would be placed in this particular container. When Armstrong made the purchase, officers followed the car in which the chloroform had been placed, maintaining contact by using both visual surveillance and a monitor which received the signals sent from the beeper.
Armstrong proceeded to Petschen’s house, where the container was transferred to Petschen’s automobile. Officers then followed that vehicle eastward towards the state line, across the St. Croix River, and into Wisconsin. During the latter part of this journey, Petschen began making evasive maneuvers, and the pursuing agents ended their visual surveillance. At about the same time officers lost the signal from the beeper, but with the assistance of a monitoring device located in a helicopter the approximate location of the signal was picked up again about one hour later. The signal now was stationary and the location identified was a cabin occupied by respondent near Shell Lake, Wisconsin. The record before us does not reveal that the beeper was used after the location in the area of the cabin had been initially determined.
Relying on the location of the chloroform derived through the use of the beeper and additional information obtained during three days of intermittent visual surveillance of respondent’s cabin, officers secured a search warrant. During execution of the warrant, officers discovered a fully operable, clandestine drug laboratory in the cabin. In the laboratory area officers found formulas for amphetamine and methamphetamine, over \$10,000 worth of laboratory equipment, and chemicals in quantities sufficient to produce 14 pounds of pure amphetamine. Under a barrel outside the cabin, officers located the five gallon container of chloroform.
After his motion to suppress evidence based on the warrantless monitoring of the beeper was denied, respondent was convicted for conspiring to manufacture controlled substances. He was sentenced to five years imprisonment. A divided panel of the United States Court of Appeals for the Eighth Circuit reversed the conviction, finding that the monitoring of the beeper was prohibited by the Fourth Amendment because its use had violated respondent’s reasonable expectation of privacy, and that all information derived after the location of the cabin was a fruit of the illegal beeper monitoring. We granted certiorari, and we now reverse the judgment of the Court of Appeals.
II
The governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways. We have commented more than once on the diminished expectation of privacy in an automobile:
“One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.”
A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When Petschen travelled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.
Respondent Knotts, as the owner of the cabin and surrounding premises to which Petschen drove, undoubtedly had the traditional expectation of privacy within a dwelling place insofar as the cabin was concerned:
“Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also of grave concern, not only to the individual, but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”
But no such expectation of privacy extended to the visual observation of Petschen’s automobile arriving on his premises after leaving a public highway, nor to movements of objects such as the drum of chloroform outside the cabin in the “open fields.”
Visual surveillance from public places along Petschen’s route or adjoining Knotts’ premises would have sufficed to reveal all of these facts to the police. The fact that the officers in this case relied not only on visual surveillance, but on the use of the beeper to signal the presence of Petschen’s automobile to the police receiver, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.
Respondent specifically attacks the use of the beeper insofar as it was used to determine that the can of chloroform had come to rest on his property at Shell Lake, Wisconsin. He repeatedly challenges the “use of the beeper to determine the location of the chemical drum at Respondent’s premises[;]” he states that “[t]he government thus overlooks the fact that this case involves the sanctity of Respondent’s residence, which is accorded the greatest protection available under the Fourth Amendment.”
We think that respondent’s contentions to some extent lose sight of the limited use which the government made of the signals from this particular beeper. As we have noted, nothing in this record indicates that the beeper signal was received or relied upon after it had indicated that the drum containing the chloroform had ended its automotive journey at rest on respondent’s premises in rural Wisconsin. Admittedly, because of the failure of the visual surveillance, the beeper enabled the law enforcement officials in this case to ascertain the ultimate resting place of the chloroform when they would not have been able to do so had they relied solely on their naked eyes. But scientific enhancement of this sort raises no constitutional issues which visual surveillance would not also raise. A police car following Petschen at a distance throughout his journey could have observed him leaving the public highway and arriving at the cabin owned by respondent, with the drum of chloroform still in the car. This fact, along with others, was used by the government in obtaining a search warrant which led to the discovery of the clandestine drug laboratory. But there is no indication that the beeper was used in any way to reveal information as to the movement of the drum within the cabin, or in any way that would not have been visible to the naked eye from outside the cabin.
We thus return to the question posed at the beginning of our inquiry in discussing Katz, supra; did monitoring the beeper signals complained of by respondent invade any legitimate expectation of privacy on his part? For the reasons previously stated, we hold they did not. Since they did not, there was neither a “search” nor a “seizure” within the contemplation of the Fourth Amendment. The judgment of the Court of Appeals is therefore
Reversed.
Justice STEVENS, with whom Justice BRENNAN, and Justice MARSHALL join, concurring in the judgment.
Since the respondent in this case has never questioned the installation of the radio transmitter in the chloroform drum, I agree that it was entirely reasonable for the police officers to make use of the information received over the airwaves when they were trying to ascertain the ultimate destination of the chloroform. I do not join the Court’s opinion, however, because it contains two unnecessarily broad dicta: one distorts the record in this case, and both may prove confusing to courts that must apply this decision in the future.
First, the Court implies that the chloroform drum was parading in “open fields” outside of the cabin, in a manner tantamount to its public display on the highways. The record does not support that implication.
Second, the Court suggests that the Fourth Amendment does not inhibit “the police from augmenting the sensory facilities bestowed upon them at birth with such enhancement as science and technology afforded them.” But the Court held to the contrary in Katz v. United States. Although the augmentation in this case was unobjectionable, it by no means follows that the use of electronic detection techniques does not implicate especially sensitive concerns.
Accordingly, I concur in the judgment.
* * *
The ubiquitous use of mobile phones, by which users not only have conversations but also transmit all sorts of sensitive data, has raised important questions about when the government may intercept information transmitted by phone users. This is not, however, a new issue. More than four decades ago, police obtained certain information from a suspect’s telephone company, and prosecutors used that information against the defendant at trial. Here is the resulting Fourth Amendment case.
Supreme Court of the United States
Michael Lee Smith v. Maryland
Decided June 20, 1979—442 U.S. 735
Mr. Justice BLACKMUN delivered the opinion of the Court.
This case presents the question whether the installation and use of a pen register1 constitutes a “search” within the meaning of the Fourth Amendment.
I
On March 5, 1976, in Baltimore, Md., Patricia McDonough was robbed. She gave the police a description of the robber and of a 1975 Monte Carlo automobile she had observed near the scene of the crime. After the robbery, McDonough began receiving threatening and obscene phone calls from a man identifying himself as the robber. On one occasion, the caller asked that she step out on her front porch; she did so, and saw the 1975 Monte Carlo she had earlier described to police moving slowly past her home. On March 16, police spotted a man who met McDonough’s description driving a 1975 Monte Carlo in her neighborhood. By tracing the license plate number, police learned that the car was registered in the name of petitioner, Michael Lee Smith.
The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner’s home. The police did not get a warrant or court order before having the pen register installed. The register revealed that on March 17 a call was placed from petitioner’s home to McDonough’s phone. On the basis of this and other evidence, the police obtained a warrant to search petitioner’s residence. The search revealed that a page in petitioner’s phone book was turned down to the name and number of Patricia McDonough; the phone book was seized. Petitioner was arrested, and a six-man lineup was held on March 19. McDonough identified petitioner as the man who had robbed her.
Petitioner was indicted in the Criminal Court of Baltimore for robbery. By pretrial motion, he sought to suppress “all fruits derived from the pen register” on the ground that the police had failed to secure a warrant prior to its installation. The trial court denied the suppression motion, holding that the warrantless installation of the pen register did not violate the Fourth Amendment. Petitioner then waived a jury, and the case was submitted to the court on an agreed statement of facts. The pen register tape (evidencing the fact that a phone call had been made from petitioner’s phone to McDonough’s phone) and the phone book seized in the search of petitioner’s residence were admitted into evidence against him. Petitioner was convicted, and was sentenced to six years. He appealed to the Maryland Court of Special Appeals, but the Court of Appeals of Maryland issued a writ of certiorari to the intermediate court in advance of its decision in order to consider whether the pen register evidence had been properly admitted at petitioner’s trial.
The Court of Appeals affirmed the judgment of conviction, holding that “there is no constitutionally protected reasonable expectation of privacy in the numbers dialed into a telephone system and hence no search within the fourth amendment is implicated by the use of a pen register installed at the central offices of the telephone company.” Because there was no “search,” the court concluded, no warrant was needed. Certiorari was granted.
A
In determining whether a particular form of government-initiated electronic surveillance is a “search” within the meaning of the Fourth Amendment, our lodestar is Katz v. United States, 389 U.S. 347 (1967).
Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy” that has been invaded by government action. This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy”—whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.” The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable’”—whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is “justifiable” under the circumstances.
B
In applying the Katz analysis to this case, it is important to begin by specifying precisely the nature of the state activity that is challenged. The activity here took the form of installing and using a pen register. Since the pen register was installed on telephone company property at the telephone company’s central offices, petitioner obviously cannot claim that his “property” was invaded or that police intruded into a “constitutionally protected area.” Petitioner’s claim, rather, is that, notwithstanding the absence of a trespass, the State, as did the Government in Katz, infringed a “legitimate expectation of privacy” that petitioner held. Yet a pen register differs significantly from the listening device employed in Katz, for pen registers do not acquire the contents of communications. This Court recently noted:
“Indeed, a law enforcement official could not even determine from the use of a pen register whether a communication existed. These devices do not hear sound. They disclose only the telephone numbers that have been dialed—a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers.”
Given a pen register’s limited capabilities, therefore, petitioner’s argument that its installation and use constituted a “search” necessarily rests upon a claim that he had a “legitimate expectation of privacy” regarding the numbers he dialed on his phone.
This claim must be rejected. First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must “convey” phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies “for the purposes of checking billing operations, detecting fraud and preventing violations of law.” Electronic equipment is used not only to keep billing records of toll calls, but also “to keep a record of all calls dialed from a telephone which is subject to a special rate structure.” Pen registers are regularly employed “to determine whether a home phone is being used to conduct a business, to check for a defective dial, or to check for overbilling.” Although most people may be oblivious to a pen register’s esoteric functions, they presumably have some awareness of one common use: to aid in the identification of persons making annoying or obscene calls. Most phone books tell subscribers, on a page entitled “Consumer Information,” that the company “can frequently help in identifying to the authorities the origin of unwelcome and troublesome calls.” Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.
Petitioner argues, however, that, whatever the expectations of telephone users in general, he demonstrated an expectation of privacy by his own conduct here, since he “us[ed] the telephone in his house to the exclusion of all others.” But the site of the call is immaterial for purposes of analysis in this case. Although petitioner’s conduct may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed. Regardless of his location, petitioner had to convey that number to the telephone company in precisely the same way if he wished to complete his call. The fact that he dialed the number on his home phone rather than on some other phone could make no conceivable difference, nor could any subscriber rationally think that it would.
Second, even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not “one that society is prepared to recognize as ‘reasonable.’” This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.
This analysis dictates that petitioner can claim no legitimate expectation of privacy here. When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and “exposed” that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed. The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber. Petitioner concedes that if he had placed his calls through an operator, he could claim no legitimate expectation of privacy. We are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.
We therefore conclude that petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and that, even if he did, his expectation was not “legitimate.” The installation and use of a pen register, consequently, was not a “search,” and no warrant was required. The judgment of the Maryland Court of Appeals is affirmed.
Mr. Justice POWELL took no part in the consideration or decision of this case.
Mr. Justice STEWART, with whom Mr. Justice BRENNAN joins, dissenting.
I am not persuaded that the numbers dialed from a private telephone fall outside the constitutional protection of the Fourth and Fourteenth Amendments.
In Katz v. United States, the Court acknowledged the “vital role that the public telephone has come to play in private communication[s].” The role played by a private telephone is even more vital, and since Katz it has been abundantly clear that telephone conversations carried on by people in their homes or offices are fully protected.
Nevertheless, the Court today says that those safeguards do not extend to the numbers dialed from a private telephone, apparently because when a caller dials a number the digits may be recorded by the telephone company for billing purposes. But that observation no more than describes the basic nature of telephone calls. A telephone call simply cannot be made without the use of telephone company property and without payment to the company for the service. The telephone conversation itself must be electronically transmitted by telephone company equipment, and may be recorded or overheard by the use of other company equipment. Yet we have squarely held that the user of even a public telephone is entitled “to assume that the words he utters into the mouthpiece will not be broadcast to the world.”
The central question in this case is whether a person who makes telephone calls from his home is entitled to make a similar assumption about the numbers he dials. What the telephone company does or might do with those numbers is no more relevant to this inquiry than it would be in a case involving the conversation itself. It is simply not enough to say, after Katz, that there is no legitimate expectation of privacy in the numbers dialed because the caller assumes the risk that the telephone company will disclose them to the police.
I think that the numbers dialed from a private telephone—like the conversations that occur during a call—are within the constitutional protection recognized in Katz. It seems clear to me that information obtained by pen register surveillance of a private telephone is information in which the telephone subscriber has a legitimate expectation of privacy. The information captured by such surveillance emanates from private conduct within a person’s home or office—locations that without question are entitled to Fourth and Fourteenth Amendment protection. Further, that information is an integral part of the telephonic communication that under Katz is entitled to constitutional protection, whether or not it is captured by a trespass into such an area.
The numbers dialed from a private telephone—although certainly more prosaic than the conversation itself—are not without “content.” Most private telephone subscribers may have their own numbers listed in a publicly distributed directory, but I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person’s life.
I respectfully dissent.
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
The Court concludes that because individuals have no actual or legitimate expectation of privacy in information they voluntarily relinquish to telephone companies, the use of pen registers by government agents is immune from Fourth Amendment scrutiny. I respectfully dissent.
Applying the standards set forth in Katz v. United States, the Court first determines that telephone subscribers have no subjective expectations of privacy concerning the numbers they dial. To reach this conclusion, the Court posits that individuals somehow infer from the long-distance listings on their phone bills, and from the cryptic assurances of “help” in tracing obscene calls included in “most” phone books, that pen registers are regularly used for recording local calls. But even assuming, as I do not, that individuals “typically know” that a phone company monitors calls for internal reasons, it does not follow that they expect this information to be made available to the public in general or the government in particular. Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.
The crux of the Court’s holding, however, is that whatever expectation of privacy petitioner may in fact have entertained regarding his calls, it is not one “society is prepared to recognize as ‘reasonable’.” In so ruling, the Court determines that individuals who convey information to third parties have “assumed the risk” of disclosure to the government. This analysis is misconceived in two critical respects.
Implicit in the concept of assumption of risk is some notion of choice. At least in the third-party consensual surveillance cases, which first incorporated risk analysis into Fourth Amendment doctrine, the defendant presumably had exercised some discretion in deciding who should enjoy his confidential communications. By contrast here, unless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance. It is idle to speak of “assuming” risks in contexts where, as a practical matter, individuals have no realistic alternative.
More fundamentally, to make risk analysis dispositive in assessing the reasonableness of privacy expectations would allow the government to define the scope of Fourth Amendment protections. For example, law enforcement officials, simply by announcing their intent to monitor the content of random samples of first-class mail or private phone conversations, could put the public on notice of the risks they would thereafter assume in such communications. Yet, although acknowledging this implication of its analysis, the Court is willing to concede only that, in some circumstances, a further “normative inquiry would be proper.” No meaningful effort is made to explain what those circumstances might be, or why this case is not among them.
In my view, whether privacy expectations are legitimate within the meaning of Katz depends not on the risks an individual can be presumed to accept when imparting information to third parties, but on the risks he should be forced to assume in a free and open society. By its terms, the constitutional prohibition of unreasonable searches and seizures assigns to the judiciary some prescriptive responsibility. As Mr. Justice Harlan, who formulated the standard the Court applies today, himself recognized: “[s]ince it is the task of the law to form and project, as well as mirror and reflect, we should not … merely recite … risks without examining the desirability of saddling them upon society.” In making this assessment, courts must evaluate the “intrinsic character” of investigative practices with reference to the basic values underlying the Fourth Amendment. And for those “extensive intrusions that significantly jeopardize [individuals’] sense of security … more than self-restraint by law enforcement officials is required.”
The use of pen registers, I believe, constitutes such an extensive intrusion. To hold otherwise ignores the vital role telephonic communication plays in our personal and professional relationships, as well as the First and Fourth Amendment interests implicated by unfettered official surveillance. Privacy in placing calls is of value not only to those engaged in criminal activity. The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts. Permitting governmental access to telephone records on less than probable cause may thus impede certain forms of political affiliation and journalistic endeavor that are the hallmark of a truly free society. Particularly given the Government’s previous reliance on warrantless telephonic surveillance to trace reporters’ sources and monitor protected political activity, I am unwilling to insulate use of pen registers from independent judicial review.
Just as one who enters a public telephone booth is “entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world,” so too, he should be entitled to assume that the numbers he dials in the privacy of his home will be recorded, if at all, solely for the phone company’s business purposes. Accordingly, I would require law enforcement officials to obtain a warrant before they enlist telephone companies to secure information otherwise beyond the government’s reach.
Notes, Comments, and Questions
For nearly forty years, the third-party disclosure doctrine stood as a broad general rule. The advance of technology, however, has raised questions about the doctrine. Consider, for example, the sort of data commonly transmitted by mobile phones. A person using GPS mapping on a phone is transmitting her location to a third party. Consider too the use of email, whether on a phone or on a computer. When someone sends email, the sender knows (at least at some basic level) that the contents of the message are transmitted to a third party before reaching the intended recipient. (Indeed, many third parties are likely involved.)
Does a person who sends email despite knowing that messages travel via third-party servers (for example, on Gmail) forfeit any reasonable expectation of privacy with respect to the content of the messages?
Imagine that a phone company routinely retains data concerning the locations of customers’ mobile phones. If police contact a phone company and obtain the location data for a particular customer’s phone from the previous month, is that a “search” or not? (We will confront this issue again in Chapter 5. Jot down your answer now, along with your reasoning, so that you can compare it with the reasoning used by the Court.)
* * *
In the next chapter, we will study the concept of “open fields,” to which the majority and dissent referred in Knotts. We will also consider police use of aerial surveillance, which required further elaboration of the Court’s definition of “search.”
Then, in Chapter 5, during which we will wrap up our discussion of “what is a search,” we will consider (1) more recent judicial analysis inspired by modern phone technology and (2) police use of dogs. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.02%3A_Chapter_3_-_What_Is_a_Search_Some_Specifics.txt |
The Fourth Amendment protects the people’s “persons, houses, papers, and effects.” While this language is quite broad, it does not include everything someone might possess or wish to protect from intrusion. For example, if one owns agricultural land far from any “house,” that land is not a person, a house, a paper, or an effect. Police searches of such land, therefore, are not “searches” regulated by the Fourth Amendment. In the next two cases, the Court attempts to define the barrier separating the “curtilage” (an area near a house that is treated as a “house” for Fourth Amendment purposes) from the “open fields” (which enjoy no Fourth Amendment protection).
Supreme Court of the United States
Ray Oliver v. United States
Decided April 17, 1984 – 466 U.S. 170
Justice POWELL delivered the opinion of the Court.
The “open fields” doctrine, first enunciated by this Court in Hester v. United States, 265 U.S. 57 (1924), permits police officers to enter and search a field without a warrant. We granted certiorari to clarify confusion that has arisen as to the continued vitality of the doctrine.
I
Acting on reports that marihuana was being raised on the farm of petitioner Oliver, two narcotics agents of the Kentucky State Police went to the farm to investigate. Arriving at the farm, they drove past petitioner’s house to a locked gate with a “No Trespassing” sign. A footpath led around one side of the gate. The agents walked around the gate and along the road for several hundred yards, passing a barn and a parked camper. At that point, someone standing in front of the camper shouted: “No hunting is allowed, come back up here.” The officers shouted back that they were Kentucky State Police officers, but found no one when they returned to the camper. The officers resumed their investigation of the farm and found a field of marihuana over a mile from petitioner’s home.
Petitioner was arrested and indicted for “manufactur[ing]” a “controlled substance.” After a pretrial hearing, the District Court suppressed evidence of the discovery of the marihuana field. Applying Katz v. United States, the court found that petitioner had a reasonable expectation that the field would remain private because petitioner “had done all that could be expected of him to assert his privacy in the area of farm that was searched.” He had posted “No Trespassing” signs at regular intervals and had locked the gate at the entrance to the center of the farm. Further, the court noted that the field itself is highly secluded: it is bounded on all sides by woods, fences, and embankments and cannot be seen from any point of public access. The court concluded that this was not an “open” field that invited casual intrusion.
The Court of Appeals for the Sixth Circuit, sitting en banc, reversed the District Court. The court concluded that Katz, upon which the District Court relied, had not impaired the vitality of the open fields doctrine of Hester. Rather, the open fields doctrine was entirely compatible with Katz’ emphasis on privacy. The court reasoned that the “human relations that create the need for privacy do not ordinarily take place” in open fields, and that the property owner’s common-law right to exclude trespassers is insufficiently linked to privacy to warrant the Fourth Amendment’s protection. We granted certiorari.
II
The rule announced in Hester v. United States was founded upon the explicit language of the Fourth Amendment. That Amendment indicates with some precision the places and things encompassed by its protections. As Justice Holmes explained for the Court in his characteristically laconic style: “[T]he special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields. The distinction between the latter and the house is as old as the common law.”
Nor are the open fields “effects” within the meaning of the Fourth Amendment. In this respect, it is suggestive that James Madison’s proposed draft of what became the Fourth Amendment preserves “[t]he rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures….” Although Congress’ revisions of Madison’s proposal broadened the scope of the Amendment in some respects, the term “effects” is less inclusive than “property” and cannot be said to encompass open fields. We conclude, as did the Court in deciding Hester v. United States, that the government’s intrusion upon the open fields is not one of those “unreasonable searches” proscribed by the text of the Fourth Amendment.
III
This interpretation of the Fourth Amendment’s language is consistent with the understanding of the right to privacy expressed in our Fourth Amendment jurisprudence. Since Katz v. United States, the touchstone of [Fourth] Amendment analysis has been the question whether a person has a “constitutionally protected reasonable expectation of privacy.” The Amendment does not protect the merely subjective expectation of privacy, but only those “expectation[s] that society is prepared to recognize as ‘reasonable.’”
A
No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant. In assessing the degree to which a search infringes upon individual privacy, the Court has given weight to such factors as the intention of the Framers of the Fourth Amendment, the uses to which the individual has put a location, and our societal understanding that certain areas deserve the most scrupulous protection from government invasion. These factors are equally relevant to determining whether the government’s intrusion upon open fields without a warrant or probable cause violates reasonable expectations of privacy and is therefore a search proscribed by the Amendment.
In this light, the rule of Hester v. United States that we reaffirm today may be understood as providing that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. This rule is true to the conception of the right to privacy embodied in the Fourth Amendment. The Amendment reflects the recognition of the Framers that certain enclaves should be free from arbitrary government interference. For example, the Court since the enactment of the Fourth Amendment has stressed “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.”
In contrast, open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. Moreover, as a practical matter these lands usually are accessible to the public and the police in ways that a home, an office, or commercial structure would not be. It is not generally true that fences or “No Trespassing” signs effectively bar the public from viewing open fields in rural areas. [P]etitioner Oliver concede[s] that the public and police lawfully may survey lands from the air. For these reasons, the asserted expectation of privacy in open fields is not an expectation that “society recognizes as reasonable.”
The historical underpinnings of the open fields doctrine also demonstrate that the doctrine is consistent with respect for “reasonable expectations of privacy.” As Justice Holmes observed in Hester, the common law distinguished “open fields” from the “curtilage,” the land immediately surrounding and associated with the home. The distinction implies that only the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private. Conversely, the common law implies, as we reaffirm today, that no expectation of privacy legitimately attaches to open fields.
We conclude, from the text of the Fourth Amendment and from the historical and contemporary understanding of its purposes, that an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers.
B
Nor would a case-by-case approach provide a workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment. Under this approach, police officers would have to guess before every search whether landowners had erected fences sufficiently high, posted a sufficient number of warning signs, or located contraband in an area sufficiently secluded to establish a right of privacy. The lawfulness of a search would turn on “‘[a] highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions ….’” This Court repeatedly has acknowledged the difficulties created for courts, police, and citizens by an ad hoc, case-by-case definition of Fourth Amendment standards to be applied in differing factual circumstances.
IV
Nor is the government’s intrusion upon an open field a “search” in the constitutional sense because that intrusion is a trespass at common law. The existence of a property right is but one element in determining whether expectations of privacy are legitimate. “‘The premise that property interests control the right of the Government to search and seize has been discredited.’” “[E]ven a property interest in premises may not be sufficient to establish a legitimate expectation of privacy with respect to particular items located on the premises or activity conducted thereon.”
The common law may guide consideration of what areas are protected by the Fourth Amendment by defining areas whose invasion by others is wrongful. The law of trespass, however, forbids intrusions upon land that the Fourth Amendment would not proscribe. For trespass law extends to instances where the exercise of the right to exclude vindicates no legitimate privacy interest. Thus, in the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment.
V
We conclude that the open fields doctrine, as enunciated in Hester, is consistent with the plain language of the Fourth Amendment and its historical purposes. Moreover, Justice Holmes’ interpretation of the Amendment in Hester accords with the “reasonable expectation of privacy” analysis developed in subsequent decisions of this Court. We therefore affirm Oliver v. United States.
Justice MARSHALL, with whom Justice BRENNAN and Justice STEVENS join, dissenting.
[P]olice officers, ignoring clearly visible “No Trespassing” signs, entered upon private land in search of evidence of a crime. At a spot that could not be seen from any vantage point accessible to the public, the police discovered contraband, which was subsequently used to incriminate the owner of the land. [P]olice [did not] have a warrant authorizing their activities.
The Court holds that police conduct of this sort does not constitute an “unreasonable search” within the meaning of the Fourth Amendment. The Court reaches that startling conclusion by two independent analytical routes. First, the Court argues that, because the Fourth Amendment by its terms renders people secure in their “persons, houses, papers, and effects,” it is inapplicable to trespasses upon land not lying within the curtilage of a dwelling. Second, the Court contends that “an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.” Because I cannot agree with either of these propositions, I dissent.
I
The first ground on which the Court rests its decision is that the Fourth Amendment “indicates with some precision the places and things encompassed by its protections,” and that real property is not included in the list of protected spaces and possessions. This line of argument has several flaws. Most obviously, it is inconsistent with the results of many of our previous decisions, none of which the Court purports to overrule. For example, neither a public telephone booth nor a conversation conducted therein can fairly be described as a person, house, paper, or effect; yet we have held that the Fourth Amendment forbids the police without a warrant to eavesdrop on such a conversation. Nor can it plausibly be argued that an office or commercial establishment is covered by the plain language of the Amendment; yet we have held that such premises are entitled to constitutional protection if they are marked in a fashion that alerts the public to the fact that they are private.
Indeed, the Court’s reading of the plain language of the Fourth Amendment is incapable of explaining even its own holding in this case. The Court rules that the curtilage, a zone of real property surrounding a dwelling, is entitled to constitutional protection. We are not told, however, whether the curtilage is a “house” or an “effect”—or why, if the curtilage can be incorporated into the list of things and spaces shielded by the Amendment, a field cannot.
II
The second ground for the Court’s decision is its contention that any interest a landowner might have in the privacy of his woods and fields is not one that “society is prepared to recognize as ‘reasonable.’” The mode of analysis that underlies this assertion is certainly more consistent with our prior decisions than that discussed above. But the Court’s conclusion cannot withstand scrutiny.
A
We have frequently acknowledged that privacy interests are not coterminous with property rights. However, because “property rights reflect society’s explicit recognition of a person’s authority to act as he wishes in certain areas, [they] should be considered in determining whether an individual’s expectations of privacy are reasonable.” Indeed, the Court has suggested that, insofar as “[o]ne of the main rights attaching to property is the right to exclude others, … one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.”
It is undisputed that Oliver owned the land into which the police intruded. That fact alone provides considerable support for their assertion of legitimate privacy interests in their woods and fields. But even more telling is the nature of the sanctions that Oliver could invoke, under local law, for violation of their property rights. In Kentucky, a knowing entry upon fenced or otherwise enclosed land, or upon unenclosed land conspicuously posted with signs excluding the public, constitutes criminal trespass. Thus, positive law not only recognizes the legitimacy of Oliver’s insistence that strangers keep off [his] land, but subjects those who refuse to respect [his] wishes to the most severe of penalties—criminal liability. Under these circumstances, it is hard to credit the Court’s assertion that Oliver’s expectations of privacy were not of a sort that society is prepared to recognize as reasonable.
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In United States v. Dunn, decided three years after Oliver v. United States, the Court applied the principles set forth in Oliver to new facts.
Supreme Court of the United States
United States v. Ronald Dunn
Decided March 3, 1987 – 480 U.S. 294
Justice WHITE delivered the opinion of the Court.
We granted the Government’s petition for certiorari to decide whether the area near a barn, located approximately 50 yards from a fence surrounding a ranch house, is, for Fourth Amendment purposes, within the curtilage of the house. The Court of Appeals for the Fifth Circuit held that the barn lay within the house’s curtilage, and that the District Court should have suppressed certain evidence obtained as a result of law enforcement officials’ intrusion onto the area immediately surrounding the barn. We conclude that the barn and the area around it lay outside the curtilage of the house, and accordingly reverse the judgment of the Court of Appeals.
I
Respondent Ronald Dale Dunn and a codefendant, Robert Lyle Carpenter, were convicted by a jury of conspiring to manufacture phenylacetone and amphetamine, and to possess amphetamine with intent to distribute. Respondent was also convicted of manufacturing these two controlled substances and possessing amphetamine with intent to distribute. The events giving rise to respondent’s apprehension and conviction began in 1980 when agents from the Drug Enforcement Administration (DEA) discovered that Carpenter had purchased large quantities of chemicals and equipment used in the manufacture of amphetamine and phenylacetone. DEA agents obtained warrants from a Texas state judge authorizing installation of miniature electronic transmitter tracking devices, or “beepers,” in an electric hot plate stirrer, a drum of acetic anhydride, and a container holding phenylacetic acid, a precursor to phenylacetone. All of these items had been ordered by Carpenter. On September 3, 1980, Carpenter took possession of the electric hot plate stirrer, but the agents lost the signal from the “beeper” a few days later. The agents were able to track the “beeper” in the container of chemicals, however, from October 27, 1980, until November 5, 1980, on which date Carpenter’s pickup truck, which was carrying the container, arrived at respondent’s ranch. Aerial photographs of the ranch property showed Carpenter’s truck backed up to a barn behind the ranch house. The agents also began receiving transmission signals from the “beeper” in the hot plate stirrer that they had lost in early September and determined that the stirrer was on respondent’s ranch property.
Respondent’s ranch comprised approximately 198 acres and was completely encircled by a perimeter fence. The property also contained several interior fences, constructed mainly of posts and multiple strands of barbed wire. The ranch residence was situated ½ mile from a public road. A fence encircled the residence and a nearby small greenhouse. Two barns were located approximately 50 yards from this fence. The front of the larger of the two barns was enclosed by a wooden fence and had an open overhang. Locked, waist-high gates barred entry into the barn proper, and netting material stretched from the ceiling to the top of the wooden gates.
On the evening of November 5, 1980, law enforcement officials made a warrantless entry onto respondent’s ranch property. A DEA agent accompanied by an officer from the Houston Police Department crossed over the perimeter fence and one interior fence. Standing approximately midway between the residence and the barns, the DEA agent smelled what he believed to be phenylacetic acid, the odor coming from the direction of the barns. The officers approached the smaller of the barns—crossing over a barbed wire fence—and, looking into the barn, observed only empty boxes. The officers then proceeded to the larger barn, crossing another barbed wire fence as well as a wooden fence that enclosed the front portion of the barn. The officers walked under the barn’s overhang to the locked wooden gates and, shining a flashlight through the netting on top of the gates, peered into the barn. They observed what the DEA agent thought to be a phenylacetone laboratory. The officers did not enter the barn. At this point the officers departed from respondent’s property, but entered it twice more on November 6 to confirm the presence of the phenylacetone laboratory.
On November 6, 1980, at 8:30 p.m., a Federal Magistrate issued a warrant authorizing a search of respondent’s ranch. DEA agents and state law enforcement officials executed the warrant on November 8, 1980. The officers arrested respondent and seized chemicals and equipment, as well as bags of amphetamines they discovered in a closet in the ranch house.
The District Court denied respondent’s motion to suppress all evidence seized pursuant to the warrant and respondent [was] convicted. [T]he Court of Appeals reversed respondent’s conviction. The court concluded that the search warrant had been issued based on information obtained during the officers’ unlawful warrantless entry onto respondent’s ranch property and, therefore, all evidence seized pursuant to the warrant should have been suppressed. Underpinning this conclusion was the court’s reasoning that “the barn in question was within the curtilage of the residence and was within the protective ambit of the fourth amendment.” The Government thereupon submitted a petition for certiorari [questioning] whether the barn lay within the curtilage of the house. We granted the petition and now reverse.
II
The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself. The concept plays a part, however, in interpreting the reach of the Fourth Amendment.
Drawing upon the Court’s own cases and the cumulative experience of the lower courts that have grappled with the task of defining the extent of a home’s curtilage, we believe that curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a “correct” answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration—whether the area in question is so intimately tied to the home itself that it should be placed under the home’s “umbrella” of Fourth Amendment protection. Applying these factors to respondent’s barn and to the area immediately surrounding it, we have little difficulty in concluding that this area lay outside the curtilage of the ranch house.
First. The record discloses that the barn was located 50 yards from the fence surrounding the house and 60 yards from the house itself. Standing in isolation, this substantial distance supports no inference that the barn should be treated as an adjunct of the house.
Second. It is also significant that respondent’s barn did not lie within the area surrounding the house that was enclosed by a fence. Viewing the physical layout of respondent’s ranch in its entirety, it is plain that the fence surrounding the residence serves to demark a specific area of land immediately adjacent to the house that is readily identifiable as part and parcel of the house. Conversely, the barn—the front portion itself enclosed by a fence—and the area immediately surrounding it, stands out as a distinct portion of respondent’s ranch, quite separate from the residence.
Third. It is especially significant that the law enforcement officials possessed objective data indicating that the barn was not being used for intimate activities of the home. The aerial photographs showed that the truck Carpenter had been driving that contained the container of phenylacetic acid was backed up to the barn, “apparently,” in the words of the Court of Appeals, “for the unloading of its contents.” When on respondent’s property, the officers’ suspicion was further directed toward the barn because of “a very strong odor” of phenylacetic acid. As the DEA agent approached the barn, he “could hear a motor running, like a pump motor of some sort ….” Furthermore, the officers detected an “extremely strong” odor of phenylacetic acid coming from a small crack in the wall of the barn. Finally, as the officers were standing in front of the barn, immediately prior to looking into its interior through the netting material, “the smell was very, very strong … [and the officers] could hear the motor running very loudly.” When considered together, the above facts indicated to the officers that the use to which the barn was being put could not fairly be characterized as so associated with the activities and privacies of domestic life that the officers should have deemed the barn as part of respondent’s home.
Fourth. Respondent did little to protect the barn area from observation by those standing in the open fields. Nothing in the record suggests that the various interior fences on respondent’s property had any function other than that of the typical ranch fence; the fences were designed and constructed to corral livestock, not to prevent persons from observing what lay inside the enclosed areas.
III
Respondent submits an alternative basis for affirming the judgment below, one that was presented to but ultimately not relied upon by the Court of Appeals. Respondent asserts that he possessed an expectation of privacy, independent from his home’s curtilage, in the barn and its contents, because the barn is an essential part of his business.
We may accept, for the sake of argument, respondent’s submission that his barn enjoyed Fourth Amendment protection and could not be entered and its contents seized without a warrant. But it does not follow on the record before us that the officers’ conduct and the ensuing search and seizure violated the Constitution. It follows that no constitutional violation occurred here when the officers crossed over respondent’s ranch-style perimeter fence, and over several similarly constructed interior fences, prior to stopping at the locked front gate of the barn. As previously mentioned, the officers never entered the barn, nor did they enter any other structure on respondent’s premises. Once at their vantage point, they merely stood, outside the curtilage of the house and in the open fields upon which the barn was constructed, and peered into the barn’s open front. And, standing as they were in the open fields, the Constitution did not forbid them to observe the phenylacetone laboratory located in respondent’s barn.
Under Oliver and Hester, there is no constitutional difference between police observations conducted while in a public place and while standing in the open fields. Similarly, the fact that the objects observed by the officers lay within an area that we have assumed, but not decided, was protected by the Fourth Amendment does not affect our conclusion. The Fourth Amendment “has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.” Here, the officers’ use of the beam of a flashlight, directed through the essentially open front of respondent’s barn, did not transform their observations into an unreasonable search within the meaning of the Fourth Amendment.
The officers lawfully viewed the interior of respondent’s barn, and their observations were properly considered by the Magistrate in issuing a search warrant for respondent’s premises. Accordingly, the judgment of the Court of Appeals is reversed.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
The Government agents’ intrusions upon Ronald Dunn’s privacy and property violated the Fourth Amendment for two reasons. First, the barnyard invaded by the agents lay within the protected curtilage of Dunn’s farmhouse. Second, the agents infringed upon Dunn’s reasonable expectation of privacy in the barn and its contents. Our society is not so exclusively urban that it is unable to perceive or unwilling to preserve the expectation of farmers and ranchers that barns and their contents are protected from (literally) unwarranted government intrusion.
The Court states that curtilage questions are often resolved through evaluation of four factors. The Court applies this test and concludes that Dunn’s barn and barnyard were not within the curtilage of his dwelling. This conclusion overlooks the role a barn plays in rural life and ignores extensive authority holding that a barn, when clustered with other outbuildings near the residence, is part of the curtilage.
State and federal courts have long recognized that a barn, like many other outbuildings, is “a domestic building constituting an integral part of that group of structures making up the farm home.” Consequently, the general rule is that the “[c]urtilage includes all outbuildings used in connection with a residence, such as garages, sheds, [and] barns … connected with and in close vicinity of the residence.”
The overwhelming majority of state courts have consistently held that barns are included within the curtilage of a farmhouse. Federal courts, too, have held that barns, like other rural outbuildings, lie within the curtilage of the farmhouse. Thus, case law demonstrates that a barn is an integral part of a farm home and therefore lies within the curtilage. The Court’s opinion provides no justification for its indifference to the weight of state and federal precedent.
The Fourth Amendment prohibits police activity which, if left unrestricted, would jeopardize individuals’ sense of security or would too heavily burden those who wished to guard their privacy. In this case, in order to look inside respondent’s barn, the DEA agents traveled a one-half mile off a public road over respondent’s fenced-in property, crossed over three additional wooden and barbed wire fences, stepped under the eaves of the barn, and then used a flashlight to peer through otherwise opaque fishnetting. For the police habitually to engage in such surveillance—without a warrant—is constitutionally intolerable. Because I believe that farmers’ and ranchers’ expectations of privacy in their barns and other outbuildings are expectations society would regard as reasonable, and because I believe that sanctioning the police behavior at issue here does violence to the purpose and promise of the Fourth Amendment, I dissent.
Notes, Comments, and Questions
In both Oliver and Dunn, police walked onto someone’s land without permission. In describing the “open fields doctrine,” the Oliver Court stated: “The “open fields” doctrine, first enunciated by this Court in Hester v. United States, 265 U.S. 57 (1924), permits police officers to enter and search a field without a warrant.”
Consider whether that statement is truly accurate. Is it truly lawful for police to wander uninvited on the open fields of suspects? Perhaps it would be more accurate to state: “Police should not do this, but if they do, the Fourth Amendment has nothing to say about it.” The Hester case cited by the Court in Oliver may provide a clue. In the syllabus, the Court describes police witnesses who “held no warrant and were trespassers on the land.” By definition, trespassers are violating the law. We do not call it a “trespass” when someone walks on the property of another to visit as an invited guest, or to knock on the door and leave literature about religion or politics, or to execute a valid search warrant.
If officers who find useful (and admissible) evidence while trespassing in the open fields of suspects are breaking the law, should they be punished? Is it plausible to believe that they will be? If, as seems more likely, police departments would laud such behavior rather than condemning it, does that raise questions about the sensibility of the open fields doctrine?
At common law, the crimes of arson and burglary (which are both crimes against the dwelling), defined “house” as both a dwelling house and buildings located within the curtilage. Fourth Amendment law essentially imports this principle.
So what is curtilage? Curtilage is: “The land or yard adjoining a house, usually within an enclosure. Under the Fourth Amendment, the curtilage is an area usually protected from warrantless searches.” Black’s Law Dictionary (11th ed. 2019).
Some students may wonder if United States v. Jones, 565 U.S. 400 (2012), which was decided well after Dunn and Oliver, invalidates the open fields doctrine. The answer is no. Yes, Jones does reiterate the importance of trespass to Fourth Amendment law. And yes, officers who wander uninvited on the “open fields” of suspects likely commit trespass as defined by state law. Nonetheless, according to cases like Dunn and Oliver, the open fields are not among the “persons, houses, papers, and effects” protected by the Fourth Amendment. While Jones affects how courts will decide whether police have acted improperly with respect to someone’s “house,” the case does not affect how “house” is defined. The “open fields” remain excluded from Fourth Amendment protection.
Because the Court treats the curtilage surrounding a home as part of a “house” for Fourth Amendment purposes, police officers normally cannot walk on to curtilage and look around with neither permission nor a warrant. In response to this restriction, police have flown over houses and curtilage, using their eyes and cameras to gain information relevant to criminal investigations.
The next two cases consider whether the Fourth Amendment applies when police observe the curtilage from the air.
Supreme Court of the United States
California v. Ciraolo
Decided May 19, 1986 – 476 U.S. 207
Chief Justice BURGER delivered the opinion of the Court.
We granted certiorari to determine whether the Fourth Amendment is violated by aerial observation without a warrant from an altitude of 1,000 feet of a fenced-in backyard within the curtilage of a home.
I
On September 2, 1982, Santa Clara Police received an anonymous telephone tip that marijuana was growing in respondent’s backyard. Police were unable to observe the contents of respondent’s yard from ground level because of a 6-foot outer fence and a 10-foot inner fence completely enclosing the yard. Later that day, Officer Shutz, who was assigned to investigate, secured a private plane and flew over respondent’s house at an altitude of 1,000 feet, within navigable airspace; he was accompanied by Officer Rodriguez. Both officers were trained in marijuana identification. From the overflight, the officers readily identified marijuana plants 8 feet to 10 feet in height growing in a 15- by 25-foot plot in respondent’s yard; they photographed the area with a standard 35mm camera.
On September 8, 1982, Officer Shutz obtained a search warrant on the basis of an affidavit describing the anonymous tip and their observations; a photograph depicting respondent’s house, the backyard, and neighboring homes was attached to the affidavit as an exhibit. The warrant was executed the next day and 73 plants were seized; it is not disputed that these were marijuana.
After the trial court denied respondent’s motion to suppress the evidence of the search, respondent pleaded guilty to a charge of cultivation of marijuana. The California Court of Appeal reversed, however, on the ground that the warrantless aerial observation of respondent’s yard which led to the issuance of the warrant violated the Fourth Amendment. That court held first that respondent’s backyard marijuana garden was within the “curtilage” of his home, under Oliver v. United States. The court emphasized that the height and existence of the two fences constituted “objective criteria from which we may conclude he manifested a reasonable expectation of privacy by any standard.”
Examining the particular method of surveillance undertaken, the court then found it “significant” that the flyover “was not the result of a routine patrol conducted for any other legitimate law enforcement or public safety objective, but was undertaken for the specific purpose of observing this particular enclosure within [respondent’s] curtilage.” It held this focused observation was “a direct and unauthorized intrusion into the sanctity of the home” which violated respondent’s reasonable expectation of privacy. The California Supreme Court denied the State’s petition for review.
We granted the State’s petition for certiorari. We reverse.
The State argues that respondent has “knowingly exposed” his backyard to aerial observation, because all that was seen was visible to the naked eye from any aircraft flying overhead. The State analogizes its mode of observation to a knothole or opening in a fence: if there is an opening, the police may look.
The California Court of Appeal accepted the analysis that unlike the casual observation of a private person flying overhead, this flight was focused specifically on a small suburban yard, and was not the result of any routine patrol overflight. Respondent contends he has done all that can reasonably be expected to tell the world he wishes to maintain the privacy of his garden within the curtilage without covering his yard. Such covering, he argues, would defeat its purpose as an outside living area; he asserts he has not “knowingly” exposed himself to aerial views.
II
The touchstone of Fourth Amendment analysis is whether a person has a “constitutionally protected reasonable expectation of privacy.” Katz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?
Clearly—and understandably—respondent has met the test of manifesting his own subjective intent and desire to maintain privacy as to his unlawful agricultural pursuits. It can reasonably be assumed that the 10-foot fence was placed to conceal the marijuana crop from at least street-level views. So far as the normal sidewalk traffic was concerned, this fence served that purpose, because respondent “took normal precautions to maintain his privacy.”
Yet a 10-foot fence might not shield these plants from the eyes of a citizen or a policeman perched on the top of a truck or a two-level bus. Whether respondent therefore manifested a subjective expectation of privacy from all observations of his backyard, or whether instead he manifested merely a hope that no one would observe his unlawful gardening pursuits, is not entirely clear in these circumstances. Respondent appears to challenge the authority of government to observe his activity from any vantage point or place if the viewing is motivated by a law enforcement purpose, and not the result of a casual, accidental observation.
We turn, therefore, to the second inquiry under Katz, i.e., whether that expectation is reasonable. In pursuing this inquiry, we must keep in mind that “[t]he test of legitimacy is not whether the individual chooses to conceal assertedly ‘private’ activity,” but instead “whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.”
Respondent argues that because his yard was in the curtilage of his home, no governmental aerial observation is permissible under the Fourth Amendment without a warrant. At common law, the curtilage is the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’” The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened. The claimed area here was immediately adjacent to a suburban home, surrounded by high double fences. This close nexus to the home would appear to encompass this small area within the curtilage. Accepting, as the State does, that this yard and its crop fall within the curtilage, the question remains whether naked-eye observation of the curtilage by police from an aircraft lawfully operating at an altitude of 1,000 feet violates an expectation of privacy that is reasonable.
That the area is within the curtilage does not itself bar all police observation. The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible.
The observations by Officers Shutz and Rodriguez in this case took place within public navigable airspace in a physically nonintrusive manner; from this point they were able to observe plants readily discernible to the naked eye as marijuana. That the observation from aircraft was directed at identifying the plants and the officers were trained to recognize marijuana is irrelevant. Such observation is precisely what a judicial officer needs to provide a basis for a warrant. Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed. On this record, we readily conclude that respondent’s expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor.
Reversed.
Justice POWELL, with whom Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join, dissenting.
Concurring in Katz v. United States, Justice Harlan warned that any decision to construe the Fourth Amendment as proscribing only physical intrusions by police onto private property “is, in the present day, bad physics as well as bad law, for reasonable expectations of privacy may be defeated by electronic as well as physical invasion.” Because the Court today ignores that warning in an opinion that departs significantly from the standard developed in Katz for deciding when a Fourth Amendment violation has occurred, I dissent.
The Court [holds] that respondent’s expectation of privacy in the curtilage of his home, although reasonable as to intrusions on the ground, was unreasonable as to surveillance from the navigable airspace. In my view, the Court’s holding rests on only one obvious fact, namely, that the airspace generally is open to all persons for travel in airplanes. The Court does not explain why this single fact deprives citizens of their privacy interest in outdoor activities in an enclosed curtilage.
The Court’s holding must rest solely on the fact that members of the public fly in planes and may look down at homes as they fly over them. The Court does not explain why it finds this fact to be significant. One may assume that the Court believes that citizens bear the risk that air travelers will observe activities occurring within backyards that are open to the sun and air. This risk, the Court appears to hold, nullifies expectations of privacy in those yards even as to purposeful police surveillance from the air.
This line of reasoning is flawed. First, the actual risk to privacy from commercial or pleasure aircraft is virtually nonexistent. Travelers on commercial flights, as well as private planes used for business or personal reasons, normally obtain at most a fleeting, anonymous, and nondiscriminating glimpse of the landscape and buildings over which they pass. The risk that a passenger on such a plane might observe private activities, and might connect those activities with particular people, is simply too trivial to protect against. It is no accident that, as a matter of common experience, many people build fences around their residential areas, but few build roofs over their backyards. Therefore, contrary to the Court’s suggestion, people do not “‘knowingly expos[e]’” their residential yards “‘to the public’” merely by failing to build barriers that prevent aerial surveillance.
Since respondent had a reasonable expectation of privacy in his yard, aerial surveillance undertaken by the police for the purpose of discovering evidence of crime constituted a “search” within the meaning of the Fourth Amendment. The indiscriminate nature of aerial surveillance, illustrated by Officer Shutz’ photograph of respondent’s home and enclosed yard as well as those of his neighbors, poses “far too serious a threat to privacy interests in the home to escape entirely some sort of Fourth Amendment oversight.” Therefore, I would affirm the judgment of the California Court of Appeal ordering suppression of the marijuana plants. I dissent.
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In the next case, the Court applies the rule set forth in Ciraolo, which concerned fixed-wing aircraft, to police use of helicopters.
Supreme Court of the United States
Florida v. Michael Riley
Decided Jan. 23, 1989 – 488 U.S. 445
Justice WHITE announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, Justice SCALIA, and Justice KENNEDY join.
On certification to it by a lower state court, the Florida Supreme Court addressed the following question: “Whether surveillance of the interior of a partially covered greenhouse in a residential backyard from the vantage point of a helicopter located 400 feet above the greenhouse constitutes a ‘search’ for which a warrant is required under the Fourth Amendment.” The court answered the question in the affirmative, and we granted the State’s petition for certiorari challenging that conclusion.
Respondent Riley lived in a mobile home located on five acres of rural property. A greenhouse was located 10 to 20 feet behind the mobile home. Two sides of the greenhouse were enclosed. The other two sides were not enclosed but the contents of the greenhouse were obscured from view from surrounding property by trees, shrubs, and the mobile home. The greenhouse was covered by corrugated roofing panels, some translucent and some opaque. At the time relevant to this case, two of the panels, amounting to approximately 10% of the roof area, were missing. A wire fence surrounded the mobile home and the greenhouse, and the property was posted with a “DO NOT ENTER” sign.
This case originated with an anonymous tip to the Pasco County Sheriff’s office that marijuana was being grown on respondent’s property. When an investigating officer discovered that he could not see the contents of the greenhouse from the road, he circled twice over respondent’s property in a helicopter at the height of 400 feet. With his naked eye, he was able to see through the openings in the roof and one or more of the open sides of the greenhouse and to identify what he thought was marijuana growing in the structure. A warrant was obtained based on these observations, and the ensuing search revealed marijuana growing in the greenhouse. Respondent was charged with possession of marijuana under Florida law. The trial court granted his motion to suppress; the Florida Court of Appeals reversed but certified the case to the Florida Supreme Court, which quashed the decision of the Court of Appeals and reinstated the trial court’s suppression order.
We agree with the State’s submission that our decision in California v. Ciraolo controls this case.
In this case, as in Ciraolo, the property surveyed was within the curtilage of respondent’s home. Riley no doubt intended and expected that his greenhouse would not be open to public inspection, and the precautions he took protected against ground-level observation. Because the sides and roof of his greenhouse were left partially open, however, what was growing in the greenhouse was subject to viewing from the air. Under the holding in Ciraolo, Riley could not reasonably have expected the contents of his greenhouse to be immune from examination by an officer seated in a fixed-wing aircraft flying in navigable airspace at an altitude of 1,000 feet or, as the Florida Supreme Court seemed to recognize, at an altitude of 500 feet, the lower limit of the navigable airspace for such an aircraft. Here, the inspection was made from a helicopter, but as is the case with fixed-wing planes, “private and commercial flight [by helicopter] in the public airways is routine” in this country, and there is no indication that such flights are unheard of in Pasco County, Florida. Riley could not reasonably have expected that his greenhouse was protected from public or official observation from a helicopter had it been flying within the navigable airspace for fixed-wing aircraft.
Nor on the facts before us, does it make a difference for Fourth Amendment purposes that the helicopter was flying at 400 feet when the officer saw what was growing in the greenhouse through the partially open roof and sides of the structure. We would have a different case if flying at that altitude had been contrary to law or regulation. But helicopters are not bound by the lower limits of the navigable airspace allowed to other aircraft. Any member of the public could legally have been flying over Riley’s property in a helicopter at the altitude of 400 feet and could have observed Riley’s greenhouse. The police officer did no more. This is not to say that an inspection of the curtilage of a house from an aircraft will always pass muster under the Fourth Amendment simply because the plane is within the navigable airspace specified by law. But it is of obvious importance that the helicopter in this case was not violating the law, and there is nothing in the record or before us to suggest that helicopters flying at 400 feet are sufficiently rare in this country to lend substance to respondent’s claim that he reasonably anticipated that his greenhouse would not be subject to observation from that altitude. Neither is there any intimation here that the helicopter interfered with respondent’s normal use of the greenhouse or of other parts of the curtilage. As far as this record reveals, no intimate details connected with the use of the home or curtilage were observed, and there was no undue noise, and no wind, dust, or threat of injury. In these circumstances, there was no violation of the Fourth Amendment.
Justice O’CONNOR, concurring in the judgment.
I concur in the judgment reversing the Supreme Court of Florida because I agree that police observation of the greenhouse in Riley’s curtilage from a helicopter passing at an altitude of 400 feet did not violate an expectation of privacy “that society is prepared to recognize as ‘reasonable.’” I write separately, however, to clarify the standard I believe follows from California v. Ciraolo. In my view, the plurality’s approach rests the scope of Fourth Amendment protection too heavily on compliance with FAA regulations whose purpose is to promote air safety, not to protect “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
Ciraolo’s expectation of privacy was unreasonable not because the airplane was operating where it had a “right to be,” but because public air travel at 1,000 feet is a sufficiently routine part of modern life that it is unreasonable for persons on the ground to expect that their curtilage will not be observed from the air at that altitude. Although “helicopters are not bound by the lower limits of the navigable airspace allowed to other aircraft,” there is no reason to assume that compliance with FAA regulations alone determines “‘whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.’” Because the FAA has decided that helicopters can lawfully operate at virtually any altitude so long as they pose no safety hazard, it does not follow that the expectations of privacy “society is prepared to recognize as ‘reasonable’” simply mirror the FAA’s safety concerns.
In determining whether Riley had a reasonable expectation of privacy from aerial observation, the relevant inquiry after Ciraolo is not whether the helicopter was where it had a right to be under FAA regulations. Rather, consistent with Katz, we must ask whether the helicopter was in the public airways at an altitude at which members of the public travel with sufficient regularity that Riley’s expectation of privacy from aerial observation was not “one that society is prepared to recognize as ‘reasonable.’” Thus, in determining “‘whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment,’” it is not conclusive to observe, as the plurality does, that “[a]ny member of the public could legally have been flying over Riley’s property in a helicopter at the altitude of 400 feet and could have observed Riley’s greenhouse.” Nor is it conclusive that police helicopters may often fly at 400 feet. If the public rarely, if ever, travels overhead at such altitudes, the observation cannot be said to be from a vantage point generally used by the public and Riley cannot be said to have “knowingly expose[d]” his greenhouse to public view. However, if the public can generally be expected to travel over residential backyards at an altitude of 400 feet, Riley cannot reasonably expect his curtilage to be free from such aerial observation.
Because there is reason to believe that there is considerable public use of airspace at altitudes of 400 feet and above, and because Riley introduced no evidence to the contrary before the Florida courts, I conclude that Riley’s expectation that his curtilage was protected from naked-eye aerial observation from that altitude was not a reasonable one. However, public use of altitudes lower than that—particularly public observations from helicopters circling over the curtilage of a home—may be sufficiently rare that police surveillance from such altitudes would violate reasonable expectations of privacy, despite compliance with FAA air safety regulations.
Justice BRENNAN, with whom Justice MARSHALL and Justice STEVENS, join, dissenting.
The Court holds today that police officers need not obtain a warrant based on probable cause before circling in a helicopter 400 feet above a home in order to investigate what is taking place behind the walls of the curtilage. I cannot agree that the Fourth Amendment to the Constitution tolerates such an intrusion on privacy and personal security.
The opinion for a plurality of the Court reads almost as if Katz v. United States had never been decided. Notwithstanding the disclaimers of its final paragraph, the opinion relies almost exclusively on the fact that the police officer conducted his surveillance from a vantage point where, under applicable Federal Aviation Administration regulations, he had a legal right to be.
The plurality undertakes no inquiry into whether low-level helicopter surveillance by the police of activities in an enclosed backyard is consistent with the “aims of a free and open society.” Instead, it summarily concludes that Riley’s expectation of privacy was unreasonable because “[a]ny member of the public could legally have been flying over Riley’s property in a helicopter at the altitude of 400 feet and could have observed Riley’s greenhouse.” This observation is, in turn, based solely on the fact that the police helicopter was within the airspace within which such craft are allowed by federal safety regulations to fly. It is a curious notion that the reach of the Fourth Amendment can be so largely defined by administrative regulations issued for purposes of flight safety.1
The question before us must be not whether the police were where they had a right to be, but whether public observation of Riley’s curtilage was so commonplace that Riley’s expectation of privacy in his backyard could not be considered reasonable. To say that an invasion of Riley’s privacy from the skies was not impossible is most emphatically not the same as saying that his expectation of privacy within his enclosed curtilage was not “one that society is prepared to recognize as ‘reasonable.’”
Perhaps the most remarkable passage in the plurality opinion is its suggestion that the case might be a different one had any “intimate details connected with the use of the home or curtilage [been] observed.” What, one wonders, is meant by “intimate details”? If the police had observed Riley embracing his wife in the backyard greenhouse, would we then say that his reasonable expectation of privacy had been infringed? Where in the Fourth Amendment or in our cases is there any warrant for imposing a requirement that the activity observed must be “intimate” in order to be protected by the Constitution?
It is difficult to avoid the conclusion that the plurality has allowed its analysis of Riley’s expectation of privacy to be colored by its distaste for the activity in which he was engaged. It is indeed easy to forget, especially in view of current concern over drug trafficking, that the scope of the Fourth Amendment’s protection does not turn on whether the activity disclosed by a search is illegal or innocuous. But we dismiss this as a “drug case” only at the peril of our own liberties. Justice Frankfurter once noted that “[i]t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people,” United States v. Rabinowitz, 339 U.S. 56 (1950) (dissenting opinion), and nowhere is this observation more apt than in the area of the Fourth Amendment, whose words have necessarily been given meaning largely through decisions suppressing evidence of criminal activity. The principle enunciated in this case determines what limits the Fourth Amendment imposes on aerial surveillance of any person, for any reason. If the Constitution does not protect Riley’s marijuana garden against such surveillance, it is hard to see how it will prohibit the government from aerial spying on the activities of a law-abiding citizen on her fully enclosed outdoor patio. As Professor Amsterdam has eloquently written: “The question is not whether you or I must draw the blinds before we commit a crime. It is whether you and I must discipline ourselves to draw the blinds every time we enter a room, under pain of surveillance if we do not.” 58 Minn. L. Rev. 349, 403.
The issue in this case is, ultimately, “how tightly the Fourth Amendment permits people to be driven back into the recesses of their lives by the risk of surveillance.” The Court today approves warrantless helicopter surveillance from an altitude of 400 feet. The Fourth Amendment demands that we temper our efforts to apprehend criminals with a concern for the impact on our fundamental liberties of the methods we use. I hope it will be a matter of concern to my colleagues that the police surveillance methods they would sanction were among those described 40 years ago in George Orwell’s dread vision of life in the 1980’s:
“The black-mustachio’d face gazed down from every commanding corner. There was one on the house front immediately opposite. BIG BROTHER IS WATCHING YOU, the caption said. … In the far distance a helicopter skimmed down between the roofs, hovered for an instant like a bluebottle, and darted away again with a curving flight. It was the Police Patrol, snooping into people’s windows.” Nineteen Eighty-Four (1949).
Who can read this passage without a shudder, and without the instinctive reaction that it depicts life in some country other than ours? I respectfully dissent.
Notes, Comments, and Questions
Supreme Court precedent strongly suggests that as long as police pilots obey the law (such as FAA regulations on minimum altitudes), the “reasonable expectation of privacy test” will not prevent police from flying over a home. Justice O’Connor’s concurrence argues that legality is not everything, and her vote was necessary to assemble a majority of votes to affirm the conviction in Riley. Nonetheless, it is difficult to see how a lower court could hold that flights similar to those in Ciraolo and Riley—which the Supreme Court deemed not to be “searches”—have somehow violated the Fourth Amendment, at least under Katz. (Because Ciraolo and Riley were decided before the Court reinvigorated trespass-based Fourth Amendment analysis in Jones, new arguments may be available under that case’s reasoning.)
Diligent defense counsel may wish to examine whether state or local laws restrict overflights more strictly than FAA regulations. Especially as remote-controlled helicopters (a.k.a. “drones”) become widely available at low prices, police can easily fly camera-toting aircraft over the homes of suspects. If a municipality prohibits such conduct by the general public, then perhaps police who violate local ordinances will also violate reasonable expectations of privacy.
What are the limits for observations from the air? Consider an officer who uses a drone equipped with a video camera to monitor a suspect through his bedroom window. There is nothing to suggest that drones flying in neighborhoods are sufficiently rare; a drone with streaming video can be purchased for about \$60 at Target. Search or no search? Why or why not? Does the outcome change if there is a local ordinance limiting the public’s use of drones to public spaces?
Students interested in the law regulating drones (also known as “unmanned aircraft”) can find information on the website of Jonathan Rupprecht, a Florida lawyer specializing in drones. He has collected various sources of drone law, including federal statutes, federal regulations (issued by several agencies, not solely by the Federal Aviation Administration), and state laws. As Rupprecht observes, it remains undecided how much of state drone law will be preempted by federal law.
Additionally, students can look at CALI’s lesson Drones: Unmanned Aircraft Systems, to learn more about the legal aspects of drones in both military and civilian settings. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.03%3A_Chapter_4_-_What_Is_a_Search-_More_Specifics.txt |
For Chapter 3, we read Smith v. Maryland, in which the Court decided in 1979 that installation and use of a “pen register” to learn what numbers a suspect called from his home telephone was not a Fourth Amendment “search.” Nearly 40 years later, the Court considered whether the holding of Smith allowed the government to gather a suspect’s cell phone records to learn where that suspect has been. The question sharply divided the Court. Chief Justice Roberts wrote for a five-Justice majority. Each Justice who dissented wrote his own dissenting opinion. The dissents and the majority opinion combined to fill 119 pages in the Court’s slip opinion.
Supreme Court of the United States
Timothy Carpenter v. United States
Decided June 22, 2018 – 138 S. Ct. 2206
Chief Justice ROBERTS delivered the opinion of the Court.
This case presents the question whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.
A
There are 396 million cell phone service accounts in the United States—for a Nation of 326 million people. Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called “cell sites.” Although cell sites are usually mounted on a tower, they can also be found on light posts, flagpoles, church steeples, or the sides of buildings. Cell sites typically have several directional antennas that divide the covered area into sectors.
Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site. Most modern devices, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). The precision of this information depends on the size of the geographic area covered by the cell site. The greater the concentration of cell sites, the smaller the coverage area. As data usage from cell phones has increased, wireless carriers have installed more cell sites to handle the traffic. That has led to increasingly compact coverage areas, especially in urban areas.
Wireless carriers collect and store CSLI for their own business purposes, including finding weak spots in their network and applying “roaming” charges when another carrier routes data through their cell sites. In addition, wireless carriers often sell aggregated location records to data brokers, without individual identifying information of the sort at issue here. While carriers have long retained CSLI for the start and end of incoming calls, in recent years phone companies have also collected location information from the transmission of text messages and routine data connections. Accordingly, modern cell phones generate increasingly vast amounts of increasingly precise CSLI.
B
In 2011, police officers arrested four men suspected of robbing a series of Radio Shack and (ironically enough) T–Mobile stores in Detroit. One of the men confessed that, over the previous four months, the group (along with a rotating cast of getaway drivers and lookouts) had robbed nine different stores in Michigan and Ohio. The suspect identified 15 accomplices who had participated in the heists and gave the FBI some of their cell phone numbers; the FBI then reviewed his call records to identify additional numbers that he had called around the time of the robberies.
Based on that information, the prosecutors applied for court orders under the Stored Communications Act to obtain cell phone records for petitioner Timothy Carpenter and several other suspects. That statute, as amended in 1994, permits the Government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” Federal Magistrate Judges issued two orders directing Carpenter’s wireless carriers—MetroPCS and Sprint—to disclose “cell/site sector [information] for [Carpenter’s] telephone[ ] at call origination and at call termination for incoming and outgoing calls” during the four-month period when the string of robberies occurred. The first order sought 152 days of cell-site records from MetroPCS, which produced records spanning 127 days. The second order requested seven days of CSLI from Sprint, which produced two days of records covering the period when Carpenter’s phone was “roaming” in northeastern Ohio. Altogether the Government obtained 12,898 location points cataloging Carpenter’s movements—an average of 101 data points per day.
Carpenter was charged with six counts of robbery and an additional six counts of carrying a firearm during a federal crime of violence. Prior to trial, Carpenter moved to suppress the cell-site data provided by the wireless carriers. He argued that the Government’s seizure of the records violated the Fourth Amendment because they had been obtained without a warrant supported by probable cause. The District Court denied the motion.
At trial, seven of Carpenter’s confederates pegged him as the leader of the operation. In addition, FBI agent Christopher Hess offered expert testimony about the cell-site data. Hess explained that each time a cell phone taps into the wireless network, the carrier logs a time-stamped record of the cell site and particular sector that were used. With this information, Hess produced maps that placed Carpenter’s phone near four of the charged robberies. In the Government’s view, the location records clinched the case: They confirmed that Carpenter was “right where the … robbery was at the exact time of the robbery.” Carpenter was convicted on all but one of the firearm counts and sentenced to more than 100 years in prison.
The Court of Appeals for the Sixth Circuit affirmed. The court held that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had shared that information with his wireless carriers. Given that cell phone users voluntarily convey cell-site data to their carriers as “a means of establishing communication,” the court concluded that the resulting business records are not entitled to Fourth Amendment protection. We granted certiorari.
A
The Founding generation crafted the Fourth Amendment as a “response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.” In fact, as John Adams recalled, the patriot James Otis’s 1761 speech condemning writs of assistance was “the first act of opposition to the arbitrary claims of Great Britain” and helped spark the Revolution itself.
For much of our history, Fourth Amendment search doctrine was “tied to common-law trespass” and focused on whether the Government “obtains information by physically intruding on a constitutionally protected area.” More recently, the Court has recognized that “property rights are not the sole measure of Fourth Amendment violations.” In Katz v. United States, we established that “the Fourth Amendment protects people, not places,” and expanded our conception of the Amendment to protect certain expectations of privacy as well.
Although no single rubric definitively resolves which expectations of privacy are entitled to protection, the analysis is informed by historical understandings “of what was deemed an unreasonable search and seizure when [the Fourth Amendment] was adopted.” On this score, our cases have recognized some basic guideposts. First, that the Amendment seeks to secure “the privacies of life” against “arbitrary power.” Second, and relatedly, that a central aim of the Framers was “to place obstacles in the way of a too permeating police surveillance.”
We have kept this attention to Founding-era understandings in mind when applying the Fourth Amendment to innovations in surveillance tools. As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to “assure[ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”
B
The case before us involves the Government’s acquisition of wireless carrier cell-site records revealing the location of Carpenter’s cell phone whenever it made or received calls. This sort of digital data—personal location information maintained by a third party—does not fit neatly under existing precedents. Instead, requests for cell-site records lie at the intersection of two lines of cases, both of which inform our understanding of the privacy interests at stake.
The first set of cases addresses a person’s expectation of privacy in his physical location and movements. The Court [has] concluded that “augment[ed]” visual surveillance [does] not constitute a search because “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Since the movements of the vehicle and its final destination [are] “voluntarily conveyed to anyone who wanted to look,” [defendant] could not assert a privacy interest in the information obtained.
In a second set of decisions, the Court has drawn a line between what a person keeps to himself and what he shares with others. We have previously held that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” That remains true “even if the information is revealed on the assumption that it will be used only for a limited purpose.” As a result, the Government is typically free to obtain such information from the recipient without triggering Fourth Amendment protections.
III
The question we confront today is how to apply the Fourth Amendment to a new phenomenon: the ability to chronicle a person’s past movements through the record of his cell phone signals. Such tracking partakes of many of the qualities of the GPS monitoring we considered in Jones. Much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.
At the same time, the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle. But while the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.
We decline to extend [the third-party principle] to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search.
A
A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, “what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Prior to the digital age, law enforcement might have pursued a suspect for a brief stretch, but doing so “for any extended period of time was difficult and costly and therefore rarely undertaken.” For that reason, “society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.”
Allowing government access to cell-site records contravenes that expectation. Although such records are generated for commercial purposes, that distinction does not negate Carpenter’s anticipation of privacy in his physical location. Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts. As with GPS information, the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, religious, and sexual associations.” These location records “hold for many Americans the ‘privacies of life.’” And like GPS monitoring, cell phone tracking is remarkably easy, cheap, and efficient compared to traditional investigative tools. With just the click of a button, the Government can access each carrier’s deep repository of historical location information at practically no expense.
In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones. Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,”—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales. Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.
Moreover, the retrospective quality of the data here gives police access to a category of information otherwise unknowable. In the past, attempts to reconstruct a person’s movements were limited by a dearth of records and the frailties of recollection. With access to CSLI, the Government can now travel back in time to retrace a person’s whereabouts, subject only to the retention [policies] of the wireless carriers, which currently maintain records for up to five years. Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation—this newfound tracking capacity runs against everyone. Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when.
Whoever the suspect turns out to be, he has effectively been tailed every moment of every day for five years, and the police may—in the Government’s view—call upon the results of that surveillance without regard to the constraints of the Fourth Amendment. Only the few without cell phones could escape this tireless and absolute surveillance.
Accordingly, when the Government accessed CSLI from the wireless carriers, it invaded Carpenter’s reasonable expectation of privacy in the whole of his physical movements.
B
The Government’s primary contention to the contrary is that the third-party doctrine governs this case. In its view, cell-site records are fair game because they are “business records” created and maintained by the wireless carriers. The Government recognizes that this case features new technology, but asserts that the legal question nonetheless turns on a garden-variety request for information from a third-party witness.
The Government’s position fails to contend with the seismic shifts in digital technology that made possible the tracking of not only Carpenter’s location but also everyone else’s, not for a short period but for years and years. Sprint Corporation and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible. There is a world of difference between limited types of personal information and the exhaustive chronicle of location information casually collected by wireless carriers today. The Government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information.
The third-party doctrine partly stems from the notion that an individual has a reduced expectation of privacy in information knowingly shared with another. But the fact of “diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely.”
Neither does the second rationale underlying the third-party doctrine—voluntary exposure—hold up when it comes to CSLI. Cell phone location information is not truly “shared” as one normally understands the term. In the first place, cell phones and the services they provide are “such a pervasive and insistent part of daily life” that carrying one is indispensable to participation in modern society. Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up. Virtually any activity on the phone generates CSLI, including incoming calls, texts, or e-mails and countless other data connections that a phone automatically makes when checking for news, weather, or social media updates. Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily “assume[ ] the risk” of turning over a comprehensive dossier of his physical movements.
Given the unique nature of cell phone location information, the fact that the Government obtained the information from a third party does not overcome Carpenter’s claim to Fourth Amendment protection. The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment.
Our decision today is a narrow one. We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval). We do not call into question conventional surveillance techniques and tools, such as security cameras. Nor do we address other business records that might incidentally reveal location information. Further, our opinion does not consider other collection techniques involving foreign affairs or national security. As Justice Frankfurter noted when considering new innovations in airplanes and radios, the Court must tread carefully in such cases, to ensure that we do not “embarrass the future.”
We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under that Amendment.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
Justice KENNEDY, with whom Justice THOMAS and Justice ALITO join, dissenting.
This case involves new technology, but the Court’s stark departure from relevant Fourth Amendment precedents and principles is, in my submission, unnecessary and incorrect, requiring this respectful dissent.
The new rule the Court seems to formulate puts needed, reasonable, accepted, lawful, and congressionally authorized criminal investigations at serious risk in serious cases, often when law enforcement seeks to prevent the threat of violent crimes. And it places undue restrictions on the lawful and necessary enforcement powers exercised not only by the Federal Government, but also by law enforcement in every State and locality throughout the Nation. Adherence to this Court’s longstanding precedents and analytic framework would have been the proper and prudent way to resolve this case.
The Court has twice held that individuals have no Fourth Amendment interests in business records which are possessed, owned, and controlled by a third party. This is true even when the records contain personal and sensitive information. So when the Government uses a subpoena to obtain, for example, bank records, telephone records, and credit card statements from the businesses that create and keep these records, the Government does not engage in a search of the business’s customers within the meaning of the Fourth Amendment.
In this case petitioner challenges the Government’s right to use compulsory process to obtain a now-common kind of business record: cell-site records held by cell phone service providers. The Government acquired the records through an investigative process enacted by Congress. Upon approval by a neutral magistrate, and based on the Government’s duty to show reasonable necessity, it authorizes the disclosure of records and information that are under the control and ownership of the cell phone service provider, not its customer.
Cell-site records are no different from the many other kinds of business records the Government has a lawful right to obtain by compulsory process. Customers like petitioner do not own, possess, control, or use the records, and for that reason have no reasonable expectation that they cannot be disclosed pursuant to lawful compulsory process.
In concluding that the Government engaged in a search, the Court unhinges Fourth Amendment doctrine from the property-based concepts that have long grounded the analytic framework that pertains in these cases. In doing so it draws an unprincipled and unworkable line between cell-site records on the one hand and financial and telephonic records on the other. According to today’s majority opinion, the Government can acquire a record of every credit card purchase and phone call a person makes over months or years without upsetting a legitimate expectation of privacy. But, in the Court’s view, the Government crosses a constitutional line when it obtains a court’s approval to issue a subpoena for more than six days of cell-site records in order to determine whether a person was within several hundred city blocks of a crime scene. That distinction is illogical and will frustrate principled application of the Fourth Amendment in many routine yet vital law enforcement operations.
Justice THOMAS, dissenting.
[Justice Thomas raised two primary arguments in his dissent. First, he noted that the “property” at issue belonged to MetroPCS and Sprint, and that Carpenter accordingly had no ground upon which to object to a search of the property. Second, he argued that the Court should reject entirely the “reasonable expectation of privacy” test, which Justice Thomas wrote has served “to distort Fourth Amendment jurisprudence.”]
Justice ALITO, with whom Justice THOMAS joins, dissenting.
I share the Court’s concern about the effect of new technology on personal privacy, but I fear that today’s decision will do far more harm than good. The Court’s reasoning fractures two fundamental pillars of Fourth Amendment law, and in doing so, it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.
First, the Court ignores the basic distinction between an actual search (dispatching law enforcement officers to enter private premises and root through private papers and effects) and an order merely requiring a party to look through its own records and produce specified documents. The former, which intrudes on personal privacy far more deeply, requires probable cause; the latter does not. Treating an order to produce like an actual search, as today’s decision does, is revolutionary. It violates both the original understanding of the Fourth Amendment and more than a century of Supreme Court precedent. Unless it is somehow restricted to the particular situation in the present case, the Court’s move will cause upheaval. Must every grand jury subpoena duces tecum be supported by probable cause? If so, investigations of terrorism, political corruption, white-collar crime, and many other offenses will be stymied. And what about subpoenas and other document-production orders issued by administrative agencies?
Second, the Court allows a defendant to object to the search of a third party’s property. This also is revolutionary. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects” (emphasis added), not the persons, houses, papers, and effects of others. Until today, we have been careful to heed this fundamental feature of the Amendment’s text.
By departing dramatically from these fundamental principles, the Court destabilizes long-established Fourth Amendment doctrine. We will be making repairs—or picking up the pieces—for a long time to come.
Although the majority professes a desire not to “‘embarrass the future,’” we can guess where today’s decision will lead.
One possibility is that the broad principles that the Court seems to embrace will be applied across the board. All subpoenas duces tecum and all other orders compelling the production of documents will require a demonstration of probable cause, and individuals will be able to claim a protected Fourth Amendment interest in any sensitive personal information about them that is collected and owned by third parties. Those would be revolutionary developments indeed.
The other possibility is that this Court will face the embarrassment of explaining in case after case that the principles on which today’s decision rests are subject to all sorts of qualifications and limitations that have not yet been discovered. If we take this latter course, we will inevitably end up “mak[ing] a crazy quilt of the Fourth Amendment.”
The desire to make a statement about privacy in the digital age does not justify the consequences that today’s decision is likely to produce.
Justice GORSUCH, dissenting.
[Justice Gorsuch echoed some of the arguments raised by Justice Thomas concerning the wisdom of the “reasonable expectation of privacy” test. He then suggested that Carpenter might have prevailed on a different theory, based on the trespass test reinvigorated by United States v. Jones (2012) and Florida v. Jardines, 133 S. Ct. 1409 (2013) (part of the reading for our next chapter). Under this theory, perhaps Carpenter had standing to object to a search of property held by MetroPCS and Sprint. One often retains rights to property deposited with a third party; recall the concept of a “bailment.” Because Justice Gorsuch “reluctantly” concluded that Carpenter “forfeited perhaps his most promising line of argument” by not raising it, Justice Gorsuch could not concur in the judgment (in favor of Carpenter) and instead dissented.]
Notes, Comments, and Questions
In Chapter 2, students were encouraged to consider how the doctrines set forth in Katz and Jones would resolve the question presented in Carpenter. Now, having read Carpenter, students should review their analysis. Did the Court reach the result you expected? If not, why do you think the Court’s reasoning differed from yours?
As Justice Sotomayor noted in her concurrence in United States v. Jones (Chapter 2), technological advances will demand continued attention from the Court. Students should also consider when and how the legislative and executive branches of the federal government (as well as the states) should regulate privacy related to smart phones and other technological marvels.
In many cities, drivers can use an app called “ParkMobile” to pay for parking, saving them the trouble of finding change for parking meters. The app allows users to look up their parking “history,” which is a list of times and places of prior transactions. Imagine that after a bank robbery, police contact ParkMobile corporate headquarters and obtain a list of all users who parked within a mile of the bank within an hour of the robbery. Search or no search? Why or why not? Now, imagine instead that police suspect a particular person of robbing the bank, and police contact ParkMobile to obtain that single person’s parking history for the day of the robbery. Search or no search? Why or why not?
Consider this commentary by Evan Caminker, a professor at and former dean of the University of Michigan Law School. Caminker briefed and argued Carpenter on behalf of the United States when the case was at the Sixth Circuit; he was on academic leave and was working with the federal prosecutors in Michigan. After Caminker was back in academia—and the Supreme Court had decided the case—he published these reflections:
How should courts square Katz in the future? The Court in Carpenter said there are two separate rationales underlying the third-party doctrine—lack of special sensitivity and voluntary exposure—and that CSLI triggers neither. As with its involuntary arguments, however, the Court does not explain how the two rationales relate as part of the overall doctrine.
The Court might mean that the third-party doctrine applies when either of the two rationales is present. In other words, if highly sensitive information was voluntarily conveyed (think Fitbit health data), or if nonsensitive information was involuntarily shared (perhaps computer internet protocol addresses?), then the privacy interest dissipates. This reading fits with the Court’s decision to address both variables, rather than to end its analysis after finding no voluntary sharing.
Or, the Court might mean that privacy dissipates only if both rationales apply, and the information is both voluntarily shared and nonsensitive. That seems perfectly logical too, though it seems less likely because it would mean that the third-party doctrine can never apply to sensitive information, no matter how clearly it was voluntarily shared (think of Carpenter posting his own location history on Facebook, or celebrities publishing tell-all memoirs).
And then there is a third possibility, raised and criticized by the dissents: an open-ended multifactor test. Justice Gorsuch, for example, lamented a “second Katz-like balancing inquiry, asking whether the fact of disclosure … outweighs privacy interests in the ‘category of information’ so disclosed.” Justice Kennedy also viewed the Court as announcing a balancing test that encompassed both privacy interests and CSLI tracking properties by “considering intimacy, comprehensiveness, expense, retrospectivity, and voluntariness.” Of course, the Court often articulates doctrine through multifactor tests, but Justice Kennedy feared that this one would particularly put “the law on a new and unstable foundation” as lower courts would be left to figure out for themselves how the doctrinal variables relate when they address other surveillance technologies and types of digital data.
Evan Caminker, Location Tracking and Digital Data: Can Carpenter Build A Stable Privacy Doctrine?, 2018 S. Ct. Rev. 411, 450–51 (2018).
Less than two years after Carpenter was decided, reporters revealed that federal agents had “bought access to a commercial database that maps the movements of millions of cellphones in America” and were “using it for immigration and border enforcement.” See Bryan Tau & Michelle Hackman, Federal Agencies Use Cellphone Location Data for Immigration Enforcement, Wall St. J. (Feb. 7, 2020). Asked about whether Fourth Amendment law might regulate this tactic, a former Homeland Security official said, “In this case, the government is a commercial purchaser like anybody else. Carpenter is not relevant.” He added, “The government is just buying a widget.”
* * *
In our remaining material for this chapter, we will see how the Court has applied its Fourth Amendment principles to a more old-fashioned investigatory tool: the use of dogs by police. Depending on the context—a dog sniffing bags at an airport, a dog sniffing a car during a traffic stop, a dog sniffing someone’s porch—the Court has reached different conclusions on whether using a dog is a “search.”
Supreme Court of the United States
United States v. Raymond J. Place
Decided June 20, 1983 – 462 U.S. 696
Justice O’CONNOR delivered the opinion of the Court.
Respondent Raymond J. Place’s behavior aroused the suspicions of law enforcement officers as he waited in line at the Miami International Airport to purchase a ticket to New York’s LaGuardia Airport. As Place proceeded to the gate for his flight, the agents approached him and requested his airline ticket and some identification. Place complied with the request and consented to a search of the two suitcases he had checked. Because his flight was about to depart, however, the agents decided not to search the luggage.
Prompted by Place’s parting remark that he had recognized that they were police, the agents inspected the address tags on the checked luggage and noted discrepancies in the two street addresses. Further investigation revealed that neither address existed and that the telephone number Place had given the airline belonged to a third address on the same street. On the basis of their encounter with Place and this information, the Miami agents called Drug Enforcement Administration (DEA) authorities in New York to relay their information about Place.
Two DEA agents waited for Place at the arrival gate at LaGuardia Airport in New York. There again, his behavior aroused the suspicion of the agents. After he had claimed his two bags and called a limousine, the agents decided to approach him. They identified themselves as federal narcotics agents, to which Place responded that he knew they were “cops” and had spotted them as soon as he had deplaned. One of the agents informed Place that, based on their own observations and information obtained from the Miami authorities, they believed that he might be carrying narcotics. After identifying the bags as belonging to him, Place stated that a number of police at the Miami Airport had surrounded him and searched his baggage. The agents responded that their information was to the contrary. The agents requested and received identification from Place—a New Jersey driver’s license, on which the agents later ran a computer check that disclosed no offenses, and his airline ticket receipt. When Place refused to consent to a search of his luggage, one of the agents told him that they were going to take the luggage to a federal judge to try to obtain a search warrant and that Place was free to accompany them. Place declined, but obtained from one of the agents telephone numbers at which the agents could be reached.
The agents then took the bags to Kennedy Airport, where they subjected the bags to a “sniff test” by a trained narcotics detection dog. The dog reacted positively to the smaller of the two bags but ambiguously to the larger bag. Because it was late on a Friday afternoon, the agents retained the luggage until Monday morning, when they secured a search warrant from a magistrate for the smaller bag. Upon opening that bag, the agents discovered 1,125 grams of cocaine.
Place was indicted for possession of cocaine with intent to distribute. In the District Court, Place moved to suppress the contents of the luggage seized from him at LaGuardia Airport, claiming that the warrantless seizure of the luggage violated his Fourth Amendment rights. The District Court denied the motion.
On appeal of the conviction, the United States Court of Appeals for the Second Circuit reversed. We granted certiorari and now affirm.
The purpose for which respondent’s luggage was seized was to arrange its exposure to a narcotics detection dog. Obviously, if this investigative procedure is itself a search requiring probable cause, the initial seizure of respondent’s luggage for the purpose of subjecting it to the sniff test—no matter how brief—could not be justified on less than probable cause.
The Fourth Amendment “protects people from unreasonable government intrusions into their legitimate expectations of privacy.” We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. A “canine sniff” by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.
In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here—exposure of respondent’s luggage, which was located in a public place, to a trained canine—did not constitute a “search” within the meaning of the Fourth Amendment.
[Although the Court found that the dog sniff was not a “search,” Place prevailed because the Court held that police committed an unlawful seizure of Place’s property by detaining his luggage for 90 minutes and not informing him of their plans for the luggage. The concurring opinion below disagrees with the majority’s conclusion about the dog sniff.]
Justice BRENNAN, with whom Justice MARSHALL joins, concurring in the result.
The Court suggests today that exposure of respondent’s luggage to a narcotics detection dog “did not constitute a ‘search’ within the meaning of the Fourth Amendment.”
[T]he issue is more complex than the Court’s discussion would lead one to believe. As Justice STEVENS suggested in objecting to “unnecessarily broad dicta” in United States v. Knotts, the use of electronic detection techniques that enhance human perception implicates “especially sensitive concerns.” Obviously, a narcotics detection dog is not an electronic detection device. Unlike the electronic “beeper” in Knotts, however, a dog does more than merely allow the police to do more efficiently what they could do using only their own senses. A dog adds a new and previously unobtainable dimension to human perception. The use of dogs, therefore, represents a greater intrusion into an individual’s privacy. Such use implicates concerns that are at least as sensitive as those implicated by the use of certain electronic detection devices.
I have expressed the view that dog sniffs of people constitute searches. In any event, I would leave the determination of whether dog sniffs of luggage amount to searches, and the subsidiary question of what standards should govern such intrusions, to a future case providing an appropriate, and more informed, basis for deciding these questions.
* * *
In Place, the Court focused on the use of dogs in an airport, which is a public place that persons visit by choice. In the next case, the Court turned its attention to the use of dogs during traffic stops, in which motorists are detained involuntarily.
Supreme Court of the United States
Illinois v. Roy I. Caballes
Decided Jan. 24, 2005 – 543 U.S. 405
Justice STEVENS delivered the opinion of the Court.
Illinois State Trooper Daniel Gillette stopped respondent for speeding on an interstate highway. When Gillette radioed the police dispatcher to report the stop, a second trooper, Craig Graham, a member of the Illinois State Police Drug Interdiction Team, overheard the transmission and immediately headed for the scene with his narcotics-detection dog. When they arrived, respondent’s car was on the shoulder of the road and respondent was in Gillette’s vehicle. While Gillette was in the process of writing a warning ticket, Graham walked his dog around respondent’s car. The dog alerted at the trunk. Based on that alert, the officers searched the trunk, found marijuana, and arrested respondent. The entire incident lasted less than 10 minutes.
Respondent was convicted of a narcotics offense and sentenced to 12 years’ imprisonment and a \$256,136 fine. The trial judge denied his motion to suppress the seized evidence and to quash his arrest. He held that the officers had not unnecessarily prolonged the stop and that the dog alert was sufficiently reliable to provide probable cause to conduct the search. Although the Appellate Court affirmed, the Illinois Supreme Court reversed, concluding that because the canine sniff was performed without any “‘specific and articulable facts’” to suggest drug activity, the use of the dog “unjustifiably enlarg[ed] the scope of a routine traffic stop into a drug investigation.”
The question on which we granted certiorari is narrow: “Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.” Thus, we proceed on the assumption that the officer conducting the dog sniff had no information about respondent except that he had been stopped for speeding; accordingly, we have omitted any reference to facts about respondent that might have triggered a modicum of suspicion.
[T]he Illinois Supreme Court held that the initially lawful traffic stop became an unlawful seizure solely as a result of the canine sniff that occurred outside respondent’s stopped car. That is, the court characterized the dog sniff as the cause rather than the consequence of a constitutional violation. In its view, the use of the dog converted the citizen-police encounter from a lawful traffic stop into a drug investigation, and because the shift in purpose was not supported by any reasonable suspicion that respondent possessed narcotics, it was unlawful. In our view, conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent’s constitutionally protected interest in privacy. Our cases hold that it did not.
Official conduct that does not “compromise any legitimate interest in privacy” is not a search subject to the Fourth Amendment. We have held that any interest in possessing contraband cannot be deemed “legitimate,” and thus, governmental conduct that only reveals the possession of contraband “compromises no legitimate privacy interest.” This is because the expectation “that certain facts will not come to the attention of the authorities” is not the same as an interest in “privacy that society is prepared to consider reasonable.” Respondent concedes that “drug sniffs are designed, and if properly conducted are generally likely, to reveal only the presence of contraband.” Although respondent argues that the error rates, particularly the existence of false positives, call into question the premise that drug-detection dogs alert only to contraband, the record contains no evidence or findings that support his argument. Moreover, respondent does not suggest that an erroneous alert, in and of itself, reveals any legitimate private information, and, in this case, the trial judge found that the dog sniff was sufficiently reliable to establish probable cause to conduct a full-blown search of the trunk.
Accordingly, the use of a well-trained narcotics-detection dog—one that “does not expose noncontraband items that otherwise would remain hidden from public view,” during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent’s car while he was lawfully seized for a traffic violation. Any intrusion on respondent’s privacy expectations does not rise to the level of a constitutionally cognizable infringement.
This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v. United States, 533 U.S. 27 (2001). Critical to that decision was the fact that the device was capable of detecting lawful activity—in that case, intimate details in a home, such as “at what hour each night the lady of the house takes her daily sauna and bath.” The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.
The judgment of the Illinois Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
Justice SOUTER, dissenting.
I would hold that using the dog for the purposes of determining the presence of marijuana in the car’s trunk was a search unauthorized as an incident of the speeding stop and unjustified on any other ground. I would accordingly affirm the judgment of the Supreme Court of Illinois, and I respectfully dissent.
At the heart both of Place and the Court’s opinion today is the proposition that sniffs by a trained dog are sui generis because a reaction by the dog in going alert is a response to nothing but the presence of contraband. Hence, the argument goes, because the sniff can only reveal the presence of items devoid of any legal use, the sniff “does not implicate legitimate privacy interests” and is not to be treated as a search.
The infallible dog, however, is a creature of legal fiction. Although the Supreme Court of Illinois did not get into the sniffing averages of drug dogs, their supposed infallibility is belied by judicial opinions describing well-trained animals sniffing and alerting with less than perfect accuracy, whether owing to errors by their handlers, the limitations of the dogs themselves, or even the pervasive contamination of currency by cocaine. Indeed, a study cited by Illinois in this case for the proposition that dog sniffs are “generally reliable” shows that dogs in artificial testing situations return false positives anywhere from 12.5% to 60% of the time, depending on the length of the search. In practical terms, the evidence is clear that the dog that alerts hundreds of times will be wrong dozens of times.
Once the dog’s fallibility is recognized, however, that ends the justification claimed in Place for treating the sniff as sui generis under the Fourth Amendment: the sniff alert does not necessarily signal hidden contraband, and opening the container or enclosed space whose emanations the dog has sensed will not necessarily reveal contraband or any other evidence of crime. This is not, of course, to deny that a dog’s reaction may provide reasonable suspicion, or probable cause, to search the container or enclosure; the Fourth Amendment does not demand certainty of success to justify a search for evidence or contraband. The point is simply that the sniff and alert cannot claim the certainty that Place assumed, both in treating the deliberate use of sniffing dogs as sui generis and then taking that characterization as a reason to say they are not searches subject to Fourth Amendment scrutiny. And when that aura of uniqueness disappears, there is no basis in Place’s reasoning, and no good reason otherwise, to ignore the actual function that dog sniffs perform. They are conducted to obtain information about the contents of private spaces beyond anything that human senses could perceive, even when conventionally enhanced. The information is not provided by independent third parties beyond the reach of constitutional limitations, but gathered by the government’s own officers in order to justify searches of the traditional sort, which may or may not reveal evidence of crime but will disclose anything meant to be kept private in the area searched. Thus in practice the government’s use of a trained narcotics dog functions as a limited search to reveal undisclosed facts about private enclosures, to be used to justify a further and complete search of the enclosed area. And given the fallibility of the dog, the sniff is the first step in a process that may disclose “intimate details” without revealing contraband, just as a thermal-imaging device might do, as described in Kyllo v. United States.
It makes sense, then, to treat a sniff as the search that it amounts to in practice, and to rely on the body of our Fourth Amendment cases, including Kyllo, in deciding whether such a search is reasonable. As a general proposition, using a dog to sniff for drugs is subject to the rule that the object of enforcing criminal laws does not, without more, justify suspicionless Fourth Amendment intrusions. Since the police claim to have had no particular suspicion that Caballes was violating any drug law, this sniff search must stand or fall on its being ancillary to the traffic stop that led up to it.
For the sake of providing a workable framework to analyze cases on facts like these, which are certain to come along, I would treat the dog sniff as the familiar search it is in fact, subject to scrutiny under the Fourth Amendment.1
Justice GINSBURG, with whom Justice SOUTER joins, dissenting.
The Court has never removed police action from Fourth Amendment control on the ground that the action is well calculated to apprehend the guilty. Under today’s decision, every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population.
The Illinois Supreme Court, it seems to me, correctly apprehended the danger in allowing the police to search for contraband despite the absence of cause to suspect its presence. Today’s decision, in contrast, clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots. Nor would motorists have constitutional grounds for complaint should police with dogs, stationed at long traffic lights, circle cars waiting for the red signal to turn green.
Today’s decision also undermines this Court’s situation-sensitive balancing of Fourth Amendment interests in other contexts. For example, in Bond v. United States, 529 U.S. 334 (2000), the Court held that a bus passenger had an expectation of privacy in a bag placed in an overhead bin and that a police officer’s physical manipulation of the bag constituted an illegal search. If canine drug sniffs are entirely exempt from Fourth Amendment inspection, a sniff could substitute for an officer’s request to a bus passenger for permission to search his bag, with this significant difference: The passenger would not have the option to say “No.”
The dog sniff in this case, it bears emphasis, was for drug detection only. A dog sniff for explosives, involving security interests not presented here, would be an entirely different matter.
For the reasons stated, I would hold that the police violated Caballes’ Fourth Amendment rights when, without cause to suspect wrongdoing, they conducted a dog sniff of his vehicle. I would therefore affirm the judgment of the Illinois Supreme Court.
* * *
The previous two cases analyzed the use of dogs under the “reasonable expectation of privacy” test derived from Katz. In the next case, which came one year after United States v. Jones, the Court considered the use of dogs under the law of trespass.
Supreme Court of the United States
Florida v. Joelis Jardines
Decided March 26, 2013 – 569 U.S. 1
Justice SCALIA delivered the opinion of the Court.
We consider whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a “search” within the meaning of the Fourth Amendment.
I
In 2006, Detective William Pedraja of the Miami-Dade Police Department received an unverified tip that marijuana was being grown in the home of respondent Joelis Jardines. One month later, the Department and the Drug Enforcement Administration sent a joint surveillance team to Jardines’ home. Detective Pedraja was part of that team. He watched the home for fifteen minutes and saw no vehicles in the driveway or activity around the home, and could not see inside because the blinds were drawn. Detective Pedraja then approached Jardines’ home accompanied by Detective Douglas Bartelt, a trained canine handler who had just arrived at the scene with his drug-sniffing dog. The dog was trained to detect the scent of marijuana, cocaine, heroin, and several other drugs, indicating the presence of any of these substances through particular behavioral changes recognizable by his handler.
Detective Bartelt had the dog on a six-foot leash, owing in part to the dog’s “wild” nature and tendency to dart around erratically while searching. As the dog approached Jardines’ front porch, he apparently sensed one of the odors he had been trained to detect, and began energetically exploring the area for the strongest point source of that odor. As Detective Bartelt explained, the dog “began tracking that airborne odor by … tracking back and forth,” engaging in what is called “bracketing,” “back and forth, back and forth.” Detective Bartelt gave the dog “the full six feet of the leash plus whatever safe distance [he could] give him” to do this—he testified that he needed to give the dog “as much distance as I can.” And Detective Pedraja stood back while this was occurring, so that he would not “get knocked over” when the dog was “spinning around trying to find” the source.
After sniffing the base of the front door, the dog sat, which is the trained behavior upon discovering the odor’s strongest point. Detective Bartelt then pulled the dog away from the door and returned to his vehicle. He left the scene after informing Detective Pedraja that there had been a positive alert for narcotics.
On the basis of what he had learned at the home, Detective Pedraja applied for and received a warrant to search the residence. When the warrant was executed later that day, Jardines attempted to flee and was arrested; the search revealed marijuana plants, and he was charged with trafficking in cannabis.
At trial, Jardines moved to suppress the marijuana plants on the ground that the canine investigation was an unreasonable search. The trial court granted the motion, and the Florida Third District Court of Appeal reversed. On a petition for discretionary review, the Florida Supreme Court quashed the decision of the Third District Court of Appeal and approved the trial court’s decision to suppress, holding (as relevant here) that the use of the trained narcotics dog to investigate Jardines’ home was a Fourth Amendment search unsupported by probable cause, rendering invalid the warrant based upon information gathered in that search.
We granted certiorari, limited to the question of whether the officers’ behavior was a search within the meaning of the Fourth Amendment.
II
[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.
We therefore regard the area “immediately surrounding and associated with the home”—what our cases call the curtilage—as “part of the home itself for Fourth Amendment purposes.” Here there is no doubt that the officers entered it: The front porch is the classic exemplar of an area adjacent to the home and “to which the activity of home life extends.”
Since the officers’ investigation took place in a constitutionally protected area, we turn to the question of whether it was accomplished through an unlicensed physical intrusion. While law enforcement officers need not “shield their eyes” when passing by the home “on public thoroughfares,” an officer’s leave to gather information is sharply circumscribed when he steps off those thoroughfares and enters the Fourth Amendment’s protected areas. As it is undisputed that the detectives had all four of their feet and all four of their companion’s firmly planted on the constitutionally protected extension of Jardines’ home, the only question is whether he had given his leave (even implicitly) for them to do so. He had not.
We have recognized that “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.” This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.”
But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police. The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose. Consent at a traffic stop to an officer’s checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search.
The government’s use of trained police dogs to investigate the home and its immediate surroundings is a “search” within the meaning of the Fourth Amendment. The judgment of the Supreme Court of Florida is therefore affirmed.
Notes, Comments, and Questions
Does the outcome change if the dog is sniffing the door of an apartment instead of a home? Consider a police officer who is investigating an individual for methamphetamine production. The individual lives on the third floor of an apartment building. The police officer leads a dog to the third-floor hallway; the dog sniffs several doors in the hallway without alerting. While sniffing the suspect’s door, the dog alerts to the presence of drugs. Search or no search? Why or why not? See State v. Edstrom, 916 N.W.2d 512, 515 (Minn. 2018), cert. denied, 139 S. Ct. 1262 (2019).
This chapter’s final dog case differs somewhat from the previous cases. Instead of considering what activity by dogs counts as a “search,” the Court considers how well trained a police dog must be for its “alert” to count toward the probable cause needed to justify a vehicle search. The more reliable a dog is, the more reasonable it is for police to search an area to which the dog has alerted. The less reliable the dog, the less reasonable police reliance becomes.
Supreme Court of the United States
Florida v. Clayton Harris
Decided Feb. 19, 2013 – 568 U.S. 237
Justice KAGAN delivered the opinion of the [unanimous] Court.
In this case, we consider how a court should determine if the “alert” of a drug-detection dog during a traffic stop provides probable cause to search a vehicle. The Florida Supreme Court held that the State must in every case present an exhaustive set of records, including a log of the dog’s performance in the field, to establish the dog’s reliability. We think that demand inconsistent with the “flexible, common-sense standard” of probable cause.
I
William Wheetley is a K–9 Officer in the Liberty County, Florida Sheriff’s Office. On June 24, 2006, he was on a routine patrol with Aldo, a German shepherd trained to detect certain narcotics (methamphetamine, marijuana, cocaine, heroin, and ecstasy). Wheetley pulled over respondent Clayton Harris’s truck because it had an expired license plate. On approaching the driver’s-side door, Wheetley saw that Harris was “visibly nervous,” unable to sit still, shaking, and breathing rapidly. Wheetley also noticed an open can of beer in the truck’s cup holder. Wheetley asked Harris for consent to search the truck, but Harris refused. At that point, Wheetley retrieved Aldo from the patrol car and walked him around Harris’s truck for a “free air sniff.” Aldo alerted at the driver’s-side door handle—signaling, through a distinctive set of behaviors, that he smelled drugs there.
Wheetley concluded, based principally on Aldo’s alert, that he had probable cause to search the truck. His search did not turn up any of the drugs Aldo was trained to detect. But it did reveal 200 loose pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, two containers of antifreeze, and a coffee filter full of iodine crystals—all ingredients for making methamphetamine. Wheetley accordingly arrested Harris, who admitted after proper Miranda warnings that he routinely “cooked” methamphetamine at his house and could not go “more than a few days without using” it. The State charged Harris with possessing pseudoephedrine for use in manufacturing methamphetamine.
While out on bail, Harris had another run-in with Wheetley and Aldo. This time, Wheetley pulled Harris over for a broken brake light. Aldo again sniffed the truck’s exterior, and again alerted at the driver’s-side door handle. Wheetley once more searched the truck, but on this occasion discovered nothing of interest.
Harris moved to suppress the evidence found in his truck on the ground that Aldo’s alert had not given Wheetley probable cause for a search. At the hearing on that motion, Wheetley testified about both his and Aldo’s training in drug detection. Wheetley (and a different dog) completed a 160-hour course in narcotics detection offered by the Dothan, Alabama Police Department, while Aldo (and a different handler) completed a similar, 120-hour course given by the Apopka, Florida Police Department. That same year, Aldo received a one-year certification from Drug Beat, a private company that specializes in testing and certifying K-9 dogs. Wheetley and Aldo teamed up in 2005 and went through another, 40-hour refresher course in Dothan together. They also did four hours of training exercises each week to maintain their skills. Wheetley would hide drugs in certain vehicles or buildings while leaving others “blank” to determine whether Aldo alerted at the right places. According to Wheetley, Aldo’s performance in those exercises was “really good.” The State introduced “Monthly Canine Detection Training Logs” consistent with that testimony: They showed that Aldo always found hidden drugs and that he performed “satisfactorily” (the higher of two possible assessments) on each day of training.
On cross-examination, Harris’s attorney chose not to contest the quality of Aldo’s or Wheetley’s training. She focused instead on Aldo’s certification and his performance in the field, particularly the two stops of Harris’s truck. Wheetley conceded that the certification (which, he noted, Florida law did not require) had expired the year before he pulled Harris over. Wheetley also acknowledged that he did not keep complete records of Aldo’s performance in traffic stops or other field work; instead, he maintained records only of alerts resulting in arrests. But Wheetley defended Aldo’s two alerts to Harris’s seemingly narcotics-free truck: According to Wheetley, Harris probably transferred the odor of methamphetamine to the door handle, and Aldo responded to that “residual odor.”
The trial court concluded that Wheetley had probable cause to search Harris’s truck and so denied the motion to suppress. Harris then entered a no-contest plea while reserving the right to appeal the trial court’s ruling. An intermediate state court summarily affirmed.
The Florida Supreme Court reversed, holding that Wheetley lacked probable cause to search Harris’s vehicle under the Fourth Amendment. “[W]hen a dog alerts,” the court wrote, “the fact that the dog has been trained and certified is simply not enough to establish probable cause.” To demonstrate a dog’s reliability, the State needed to produce a wider array of evidence:
“[T]he State must present … the dog’s training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog’s reliability.”
The court particularly stressed the need for “evidence of the dog’s performance history,” including records showing “how often the dog has alerted in the field without illegal contraband having been found.” That data, the court stated, could help to expose such problems as a handler’s tendency (conscious or not) to “cue [a] dog to alert” and “a dog’s inability to distinguish between residual odors and actual drugs.” Accordingly, an officer like Wheetley who did not keep full records of his dog’s field performance could never have the requisite cause to think “that the dog is a reliable indicator of drugs.”
We granted certiorari and now reverse.
II
A police officer has probable cause to conduct a search when “the facts available to [him] would ‘warrant a [person] of reasonable caution in the belief’” that contraband or evidence of a crime is present. The test for probable cause is not reducible to “precise definition or quantification.” “Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence … have no place in the [probable-cause] decision.” All we have required is the kind of “fair probability” on which “reasonable and prudent [people,] not legal technicians, act.”
In evaluating whether the State has met this practical and common-sensical standard, we have consistently looked to the totality of the circumstances. We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach. Probable cause, is “a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.”
The Florida Supreme Court flouted this established approach to determining probable cause. To assess the reliability of a drug-detection dog, the court created a strict evidentiary checklist, whose every item the State must tick off. Most prominently, an alert cannot establish probable cause under the Florida court’s decision unless the State introduces comprehensive documentation of the dog’s prior “hits” and “misses” in the field. (One wonders how the court would apply its test to a rookie dog.) No matter how much other proof the State offers of the dog’s reliability, the absent field performance records will preclude a finding of probable cause. That is the antithesis of a totality-of-the-circumstances analysis. [A] finding of a drug-detection dog’s reliability cannot depend on the State’s satisfaction of multiple, independent evidentiary requirements. No more for dogs than for human informants is such an inflexible checklist the way to prove reliability, and thus establish probable cause.
Making matters worse, the decision below treats records of a dog’s field performance as the gold standard in evidence, when in most cases they have relatively limited import. Errors may abound in such records. If a dog on patrol fails to alert to a car containing drugs, the mistake usually will go undetected because the officer will not initiate a search. Field data thus may not capture a dog’s false negatives. Conversely (and more relevant here), if the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all. The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate. Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person. Field data thus may markedly overstate a dog’s real false positives. By contrast, those inaccuracies—in either direction—do not taint records of a dog’s performance in standard training and certification settings. There, the designers of an assessment know where drugs are hidden and where they are not—and so where a dog should alert and where he should not. The better measure of a dog’s reliability thus comes away from the field, in controlled testing environments.
For that reason, evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert. If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs. After all, law enforcement units have their own strong incentive to use effective training and certification programs, because only accurate drug-detection dogs enable officers to locate contraband without incurring unnecessary risks or wasting limited time and resources.
A defendant, however, must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant, as the Solicitor General acknowledged at oral argument. And even assuming a dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause—if, say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions.
In short, a probable-cause hearing focusing on a dog’s alert should proceed much like any other. The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence. In all events, the court should not prescribe, as the Florida Supreme Court did, an inflexible set of evidentiary requirements. The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.
III
And here, Aldo’s did. The record in this case amply supported the trial court’s determination that Aldo’s alert gave Wheetley probable cause to search Harris’s truck.
Because training records established Aldo’s reliability in detecting drugs and Harris failed to undermine that showing, we agree with the trial court that Wheetley had probable cause to search Harris’s truck. We accordingly reverse the judgment of the Florida Supreme Court.
Notes, Comments, and Questions
In Harris, the Court held that Aldo (the police dog) was reliable enough that his “alert” provided sufficient evidence of crime that officers had “probable cause” to search a vehicle. The term “probable cause” appears in the text of the Fourth Amendment, and its definition is essential to understanding when police may obtain warrants, when they may search cars, and many other important questions. We examine the concept of probable cause in some detail in the next chapter.
When studying dog alerts, students should remember that lawyers have many opportunities to object to what they consider unreliable dog-alert evidence. In Harris, defense counsel’s goal was to exclude the evidence police found while searching a truck. A different Florida case, State v. Merrit Alonzo Sims (Fla. 2007), the Supreme Court of Florida considered a lawyer’s failure to object to dog-alert evidence for a different reason. In that case, a police dog handler testified at a murder trial “that his dog alerted him to the presence of narcotics in the passenger side of the car that Sims was driving.” Sims had admitted to killing a police officer with the officer’s police pistol; the issue at trial was whether the killing was murder or self-defense. Sims claimed the officer “had choked him, used racial epithets, and repeatedly threatened to kill him.”
The state, by contrast, argued that because Sims had drugs in his car, he had a motive to kill the officer to avoid being returned to prison (drug possession was against the terms of Sims’s parole). One difficulty for the state was that drugs were not found when the car was searched sometime after the killing. The state argued “that the dog would alert to the scent of narcotics after the drugs had been removed, and … used this to develop its theory of Sims’ motive.” After Sims had spent more than a decade on death row, the Florida Supreme Court considered whether his trial counsel provided ineffective assistance of counsel by failing to object to the dog-alert evidence (that is, to the testimony by the dog handler). The court held that the evidence was so unreliable that it would have been excluded had counsel properly objected, that counsel had no good justification for that failure, and that Sims’s conviction must be set aside. Sims would later plead guilty, taking a deal that included a sentence of 25 years’ imprisonment—and no death penalty.
This is but one example of a reason one might object to unreliable evidence (of all kinds). Further, even if a lawyer cannot win the exclusion of unreliable evidence, she can still argue to the jury that the evidence is lousy and should be disregarded. When studying legal doctrines related to the exclusion of evidence, students should not forget that the most common ways to attack “bad” evidence involve a combination of argument and contrary evidence.
Search Review
Fourth Amendment: What Is a Search?
Before moving to the next chapter, students may wish to review the definition of “search” by considering these examples. Instructions: Write “is,” “is not,” or “may be” in each blank. If your answer is “may be,” jot down in the margin why you are unsure. Each problem is independent of all other ones.
1) If a police officer uses a car to follow a suspect who is driving from home to work, that _________________ a search.
2) If a police officer flies a helicopter fifty feet above the ground and uses binoculars to look into a house window, that _________________ a search.
3) If a police officer rifles through a suspect’s paper recycling before the sanitation department collects it (and removes an itemized credit card bill), that _________________ a search.
4) If a police officer borrows a rare super-sensitive microphone from the CIA and points it at a living room window from across the street, thereby capturing the window vibrations and listening to the conversations of people inside, that _________________ a search.
5) If a police department deploys officers in shifts 24/7 to watch a house, writing down the description of everyone who comes and goes, that _________________ a search.
6) If a police officer chases a robbery suspect from the scene of a bank robbery, and the officer follows the sprinting subject into a nearby house, that _________________ a search. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.04%3A_Chapter_5_-_What_Is_a_Search-_Wrapping_Up.txt |
The Fourth Amendment provides that “no warrants shall issue, but upon probable cause.” Accordingly, warrants (and the searches that followed in the wake of their issuance) have been challenged on the ground that police did not provide sufficient evidence when obtaining the warrants from judges. In addition, the Court has held that in several common situations, police may conduct searches and seizures without a warrant, but only with probable cause. For example, the vehicle searches described in Florida v. Harris (Chapter 5) were permissible under the “automobile exception” to the warrant requirement, about which we will learn more later. In Illinois v. Gates, the Court set forth a new standard for when an informant’s tip provides probable cause to justify a search or arrest.
Supreme Court of the United States
Illinois v. Lance Gates
Decided June 8, 1983 – 462 U.S. 213
Justice REHNQUIST delivered the opinion of the Court.
Respondents Lance and Susan Gates were indicted for violation of state drug laws after police officers, executing a search warrant, discovered marijuana and other contraband in their automobile and home. Prior to trial the Gateses moved to suppress evidence seized during this search. The Illinois Supreme Court affirmed the decisions of lower state courts, granting the motion. It held that the affidavit submitted in support of the State’s application for a warrant to search the Gateses’ property was inadequate under this Court’s decisions in Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969).
We granted certiorari to consider the application of the Fourth Amendment to a magistrate’s issuance of a search warrant on the basis of a partially corroborated anonymous informant’s tip.
We conclude that the Illinois Supreme Court read the requirements of our Fourth Amendment decisions too restrictively.
II
We now decide whether respondents’ rights under the Fourth and Fourteenth Amendments were violated by the search of their car and house. A chronological statement of events usefully introduces the issues at stake. Bloomingdale, Ill., is a suburb of Chicago located in DuPage County. On May 3, 1978, the Bloomingdale Police Department received by mail an anonymous handwritten letter which read as follows:
“This letter is to inform you that you have a couple in your town who strictly make their living on selling drugs. They are Sue and Lance Gates, they live on Greenway, off Bloomingdale Rd. in the condominiums. Most of their buys are done in Florida. Sue his wife drives their car to Florida, where she leaves it to be loaded up with drugs, then Lance flys down and drives it back. Sue flys back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over \$100,000.00 in drugs. Presently they have over \$100,000.00 worth of drugs in their basement.
“They brag about the fact they never have to work, and make their entire living on pushers.”
“I guarantee if you watch them carefully you will make a big catch. They are friends with some big drugs dealers, who visit their house often.”
The letter was referred by the Chief of Police of the Bloomingdale Police Department to Detective Mader, who decided to pursue the tip. Mader learned, from the office of the Illinois Secretary of State, that an Illinois driver’s license had been issued to one Lance Gates, residing at a stated address in Bloomingdale. He contacted a confidential informant, whose examination of certain financial records revealed a more recent address for the Gates, and he also learned from a police officer assigned to O’Hare Airport that “L. Gates” had made a reservation on Eastern Airlines flight 245 to West Palm Beach, Fla., scheduled to depart from Chicago on May 5 at 4:15 p.m.
Mader then made arrangements with an agent of the Drug Enforcement Administration for surveillance of the May 5 Eastern Airlines flight. The agent later reported to Mader that Gates had boarded the flight, and that federal agents in Florida had observed him arrive in West Palm Beach and take a taxi to the nearby Holiday Inn. They also reported that Gates went to a room registered to one Susan Gates and that, at 7:00 a.m. the next morning, Gates and an unidentified woman left the motel in a Mercury bearing Illinois license plates and drove northbound on an interstate frequently used by travelers to the Chicago area. In addition, the DEA agent informed Mader that the license plate number on the Mercury registered to a Hornet station wagon owned by Gates. The agent also advised Mader that the driving time between West Palm Beach and Bloomingdale was approximately 22 to 24 hours.
Mader signed an affidavit setting forth the foregoing facts, and submitted it to a judge of the Circuit Court of DuPage County, together with a copy of the anonymous letter. The judge of that court thereupon issued a search warrant for the Gateses’ residence and for their automobile. The judge, in deciding to issue the warrant, could have determined that the modus operandi of the Gates had been substantially corroborated. As the anonymous letter predicted, Lance Gates had flown from Chicago to West Palm Beach late in the afternoon of May 5th, had checked into a hotel room registered in the name of his wife, and, at 7:00 a.m. the following morning, had headed north, accompanied by an unidentified woman, out of West Palm Beach on an interstate highway used by travelers from South Florida to Chicago in an automobile bearing a license plate issued to him.
At 5:15 a.m. on March 7th, only 36 hours after he had flown out of Chicago, Lance Gates, and his wife, returned to their home in Bloomingdale, driving the car in which they had left West Palm Beach some 22 hours earlier. The Bloomingdale police were awaiting them, searched the trunk of the Mercury, and uncovered approximately 350 pounds of marijuana. A search of the Gateses’ home revealed marijuana, weapons, and other contraband. The Illinois Circuit Court ordered suppression of all these items, on the ground that the affidavit submitted to the Circuit Judge failed to support the necessary determination of probable cause to believe that the Gateses’ automobile and home contained the contraband in question. This decision was affirmed in turn by the Illinois Appellate Court and by a divided vote of the Supreme Court of Illinois.
The Illinois Supreme Court concluded—and we are inclined to agree—that, standing alone, the anonymous letter sent to the Bloomingdale Police Department would not provide the basis for a magistrate’s determination that there was probable cause to believe contraband would be found in the Gateses’ car and home. The letter provides virtually nothing from which one might conclude that its author is either honest or his information reliable; likewise, the letter gives absolutely no indication of the basis for the writer’s predictions regarding the Gateses’ criminal activities. Something more was required, then, before a magistrate could conclude that there was probable cause to believe that contraband would be found in the Gateses’ home and car.
The Illinois Supreme Court also properly recognized that Detective Mader’s affidavit might be capable of supplementing the anonymous letter with information sufficient to permit a determination of probable cause. In holding that the affidavit in fact did not contain sufficient additional information to sustain a determination of probable cause, the Illinois court applied a “two-pronged test,” derived from our decision in Spinelli v. United States, 393 U.S. 410 (1969). The Illinois Supreme Court, like some others, apparently understood Spinelli as requiring that the anonymous letter satisfy each of two independent requirements before it could be relied on. According to this view, the letter, as supplemented by Mader’s affidavit, first had to adequately reveal the “basis of knowledge” of the letter writer—the particular means by which he came by the information given in his report. Second, it had to provide facts sufficiently establishing either the “veracity” of the affiant’s informant, or, alternatively, the “reliability” of the informant’s report in this particular case.
The Illinois court, alluding to an elaborate set of legal rules that have developed among various lower courts to enforce the “two-pronged test,” found that the test had not been satisfied. First, the “veracity” prong was not satisfied because, “there was simply no basis [for] … conclud[ing] that the anonymous person [who wrote the letter to the Bloomingdale Police Department] was credible.” The court indicated that corroboration by police of details contained in the letter might never satisfy the “veracity” prong, and in any event, could not do so if, as in the present case, only “innocent” details are corroborated. In addition, the letter gave no indication of the basis of its writer’s knowledge of the Gateses’ activities. The Illinois court understood Spinelli as permitting the detail contained in a tip to be used to infer that the informant had a reliable basis for his statements, but it thought that the anonymous letter failed to provide sufficient detail to permit such an inference. Thus, it concluded that no showing of probable cause had been made.
We agree with the Illinois Supreme Court that an informant’s “veracity,” “reliability” and “basis of knowledge” are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case, which the opinion of the Supreme Court of Illinois would imply. Rather, as detailed below, they should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is “probable cause” to believe that contraband or evidence is located in a particular place.
III
This totality-of-the-circumstances approach is far more consistent with our prior treatment of probable cause than is any rigid demand that specific “tests” be satisfied by every informant’s tip. Perhaps the central teaching of our decisions bearing on the probable cause standard is that it is a “practical, nontechnical conception.” “In dealing with probable cause, … as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Our observation in United States v. Cortez, 449 U.S. 411, 418 (1981) regarding “particularized suspicion,” is also applicable to the probable cause standard:
“The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”
As these comments illustrate, probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules. Informants’ tips doubtless come in many shapes and sizes from many different types of persons.
Moreover, the “two-pronged test” directs analysis into two largely independent channels—the informant’s “veracity” or “reliability” and his “basis of knowledge.” There are persuasive arguments against according these two elements such independent status. Instead, they are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.
If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip. Likewise, if an unquestionably honest citizen comes forward with a report of criminal activity—which if fabricated would subject him to criminal liability—we have found rigorous scrutiny of the basis of his knowledge unnecessary. Conversely, even if we entertain some doubt as to an informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case. Unlike a totality-of-the-circumstances analysis, which permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip, the “two-pronged test” has encouraged an excessively technical dissection of informants’ tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate.
Finely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate’s decision. While an effort to fix some general, numerically precise degree of certainty corresponding to “probable cause” may not be helpful, it is clear that “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.”
We also have recognized that affidavits “are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleading have no proper place in this area.” Likewise, search and arrest warrants long have been issued by persons who are neither lawyers nor judges, and who certainly do not remain abreast of each judicial refinement of the nature of “probable cause.” The rigorous inquiry into the Spinelli prongs and the complex superstructure of evidentiary and analytical rules that some have seen implicit in our Spinelli decision, cannot be reconciled with the fact that many warrants are—quite properly—issued on the basis of nontechnical, common-sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings.
Similarly, we have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s “determination of probable cause should be paid great deference by reviewing courts.”
If the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the warrant clause that might develop at the time of the search. In addition, the possession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct, by assuring “the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.”
Finally, the direction taken by decisions following Spinelli poorly serves “the most basic function of any government”: “to provide for the security of the individual and of his property.” The strictures that inevitably accompany the “two-pronged test” cannot avoid seriously impeding the task of law enforcement. If, as the Illinois Supreme Court apparently thought, that test must be rigorously applied in every case, anonymous tips would be of greatly diminished value in police work. Ordinary citizens, like ordinary witnesses, generally do not provide extensive recitations of the basis of their everyday observations. Likewise, as the Illinois Supreme Court observed in this case, the veracity of persons supplying anonymous tips is by hypothesis largely unknown, and unknowable. As a result, anonymous tips seldom could survive a rigorous application of either of the Spinelli prongs. Yet, such tips, particularly when supplemented by independent police investigation, frequently contribute to the solution of otherwise “perfect crimes.” While a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not.
For all these reasons, we conclude that it is wiser to abandon the “two-pronged test” established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable cause determinations. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for … conclud[ing]” that probable cause existed. We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli.
Our earlier cases illustrate the limits beyond which a magistrate may not venture in issuing a warrant. A sworn statement of an affiant that “he has cause to suspect and does believe that” liquor illegally brought into the United States is located on certain premises will not do. An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause, and [a] wholly conclusory statement fail[s] to meet this requirement. An officer’s statement that “affiants have received reliable information from a credible person and believe” that heroin is stored in a home, is likewise inadequate. [T]his is a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause. Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate’s duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued. But when we move beyond the “bare bones” affidavits this area simply does not lend itself to a prescribed set of rules, like that which had developed from Spinelli. Instead, the flexible, common-sense standard better serves the purposes of the Fourth Amendment’s probable cause requirement.
IV
Our decisions applying the totality-of-the-circumstances analysis outlined above have consistently recognized the value of corroboration of details of an informant’s tip by independent police work. Likewise, we recognized the probative value of corroborative efforts of police officials in Aguilar—the source of the “two-pronged test”—by observing that if the police had made some effort to corroborate the informant’s report at issue, “an entirely different case” would have been presented.
The showing of probable cause in the present case was fully compelling. Even standing alone, the facts obtained through the independent investigation of Mader and the DEA at least suggested that the Gateses were involved in drug trafficking. In addition to being a popular vacation site, Florida is well-known as a source of narcotics and other illegal drugs. Lance Gates’ flight to Palm Beach, his brief, overnight stay in a motel, and apparent immediate return north to Chicago in the family car, conveniently awaiting him in West Palm Beach, is as suggestive of a pre-arranged drug run, as it is of an ordinary vacation trip.
In addition, the judge could rely on the anonymous letter, which had been corroborated in major part by Mader’s efforts. The corroboration of the letter’s predictions that the Gateses’ car would be in Florida, that Lance Gates would fly to Florida in the next day or so, and that he would drive the car north toward Bloomingdale all indicated, albeit not with certainty, that the informant’s other assertions also were true. “Because an informant is right about some things, he is more probably right about other facts” including the claim regarding the Gateses’ illegal activity. This may well not be the type of “reliability” or “veracity” necessary to satisfy some views of the “veracity prong” of Spinelli, but we think it suffices for the practical, common-sense judgment called for in making a probable cause determination. It is enough, for purposes of assessing probable cause, that “corroboration through other sources of information reduced the chances of a reckless or prevaricating tale,” thus providing “a substantial basis for crediting the hearsay.”
Finally, the anonymous letter contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted. The letter writer’s accurate information as to the travel plans of each of the Gateses was of a character likely obtained only from the Gateses themselves, or from someone familiar with their not entirely ordinary travel plans. If the informant had access to accurate information of this type a magistrate could properly conclude that it was not unlikely that he also had access to reliable information of the Gateses’ alleged illegal activities. Of course, the Gateses’ travel plans might have been learned from a talkative neighbor or travel agent; under the “two-pronged test” developed from Spinelli, the character of the details in the anonymous letter might well not permit a sufficiently clear inference regarding the letter writer’s “basis of knowledge.” But, as discussed previously, probable cause does not demand the certainty we associate with formal trials. It is enough that there was a fair probability that the writer of the anonymous letter had obtained his entire story either from the Gateses or someone they trusted. And corroboration of major portions of the letter’s predictions provides just this probability. It is apparent, therefore, that the judge issuing the warrant had a “substantial basis for … conclud[ing]” that probable cause to search the Gateses’ home and car existed. The judgment of the Supreme Court of Illinois therefore must be
Reversed.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
I write to dissent from the Court’s unjustified and ill-advised rejection of the two-prong test for evaluating the validity of a warrant based on hearsay announced in Aguilar v. Texas, 378 U.S. 108 (1964), and refined in Spinelli v. United States, 393 U.S. 410 (1969).
I
In recognition of the judiciary’s role as the only effective guardian of Fourth Amendment rights, this Court has developed over the last half century a set of coherent rules governing a magistrate’s consideration of a warrant application and the showings that are necessary to support a finding of probable cause. We start with the proposition that a neutral and detached magistrate, and not the police, should determine whether there is probable cause to support the issuance of a warrant.
In order to emphasize the magistrate’s role as an independent arbiter of probable cause and to insure that searches or seizures are not effected on less than probable cause, the Court has insisted that police officers provide magistrates with the underlying facts and circumstances that support the officers’ conclusions. The Court stated that “[u]nder the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough.”
[Our previous cases] advance an important [ ] substantive value: Findings of probable cause, and attendant intrusions, should not be authorized unless there is some assurance that the information on which they are based has been obtained in a reliable way by an honest or credible person. As applied to police officers, the rules focus on the way in which the information was acquired. As applied to informants, the rules focus both on the honesty or credibility of the informant and on the reliability of the way in which the information was acquired. Insofar as it is more complicated, an evaluation of affidavits based on hearsay involves a more difficult inquiry. This suggests a need to structure the inquiry in an effort to insure greater accuracy. The standards announced in Aguilar, as refined by Spinelli, fulfill that need. The standards inform the police of what information they have to provide and magistrates of what information they should demand. The standards also inform magistrates of the subsidiary findings they must make in order to arrive at an ultimate finding of probable cause. By requiring police to provide certain crucial information to magistrates and by structuring magistrates’ probable cause inquiries, Aguilar and Spinelli assure the magistrate’s role as an independent arbiter of probable cause, insure greater accuracy in probable cause determinations, and advance the substantive value identified above.
Until today the Court has never squarely addressed the application of the Aguilar and Spinelli standards to tips from anonymous informants. By definition nothing is known about an anonymous informant’s identity, honesty, or reliability. One commentator has suggested that anonymous informants should be treated as presumptively unreliable. In any event, there certainly is no basis for treating anonymous informants as presumptively reliable. Nor is there any basis for assuming that the information provided by an anonymous informant has been obtained in a reliable way. If we are unwilling to accept conclusory allegations from the police, who are presumptively reliable, or from informants who are known, at least to the police, there cannot possibly be any rational basis for accepting conclusory allegations from anonymous informants.
II
In rejecting the Aguilar-Spinelli standards, the Court suggests that a “totality-of-the-circumstances approach is far more consistent with our prior treatment of probable cause than is any rigid demand that specific ‘tests’ be satisfied by every informant’s tip.” In support of this proposition the Court relies on the “practical, nontechnical” nature of probable cause.
[O]ne can concede that probable cause is a “practical, nontechnical” concept without betraying the values that Aguilar and Spinelli reflect. As noted, Aguilar and Spinelli require the police to provide magistrates with certain crucial information. They also provide structure for magistrates’ probable cause inquiries. In so doing, Aguilar and Spinelli preserve the role of magistrates as independent arbiters of probable cause, insure greater accuracy in probable cause determinations, and advance the substantive value of precluding findings of probable cause, and attendant intrusions, based on anything less than information from an honest or credible person who has acquired his information in a reliable way. Neither the standards nor their effects are inconsistent with a “practical, nontechnical” conception of probable cause. Once a magistrate has determined that he has information before him that he can reasonably say has been obtained in a reliable way by a credible person, he has ample room to use his common sense and to apply a practical, nontechnical conception of probable cause.
At the heart of the Court’s decision to abandon Aguilar and Spinelli appears to be its belief that “the direction taken by decisions following Spinelli poorly serves ‘the most basic function of any government: to provide for the security of the individual and of his property.’” This conclusion rests on the judgment that Aguilar and Spinelli “seriously imped[e] the task of law enforcement,” and render anonymous tips valueless in police work. Surely, the Court overstates its case. But of particular concern to all Americans must be that the Court gives virtually no consideration to the value of insuring that findings of probable cause are based on information that a magistrate can reasonably say has been obtained in a reliable way by an honest or credible person.
III
The Court’s complete failure to provide any persuasive reason for rejecting Aguilar and Spinelli doubtlessly reflects impatience with what it perceives to be “overly technical” rules governing searches and seizures under the Fourth Amendment. Words such as “practical,” “nontechnical,” and “commonsense,” as used in the Court’s opinion, are but code words for an overly permissive attitude towards police practices in derogation of the rights secured by the Fourth Amendment. Everyone shares the Court’s concern over the horrors of drug trafficking, but under our Constitution only measures consistent with the Fourth Amendment may be employed by government to cure this evil. We must be ever mindful of Justice Stewart’s admonition in Coolidge v. New Hampshire, 403 U.S. 443 (1971), that “[i]n times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or ‘extravagant’ to some. But the values were those of the authors of our fundamental constitutional concepts.” In the same vein, Glasser v. United States, 315 U.S. 60 (1942), warned that “[s]teps innocently taken may, one by one, lead to the irretrievable impairment of substantial liberties.”
Rights secured by the Fourth Amendment are particularly difficult to protect because their “advocates are usually criminals.” But the rules “we fashion [are] for the innocent and guilty alike.” By replacing Aguilar and Spinelli with a test that provides no assurance that magistrates, rather than the police, or informants, will make determinations of probable cause; imposes no structure on magistrates’ probable cause inquiries; and invites the possibility that intrusions may be justified on less than reliable information from an honest or credible person, today’s decision threatens to “obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.”
Notes, Comments, and Questions
The Gates Court rejects the Aguilar-Spinelli test’s insistence on using two specific measures to compose a (somewhat) mathematical formula for probable cause. As the Court explains, the existence of probable cause will not be found by entering “veracity” and “basis of knowledge” into a formula which yields the total weight of evidence presented to a magistrate. (The graph below exemplifies how such a formula might work.)
As the Court puts it:
“This totality-of-the-circumstances approach is far more consistent with our prior treatment of probable cause than is any rigid demand that specific ‘tests’ be satisfied by every informant’s tip. Perhaps the central teaching of our decisions bearing on the probable cause standard is that it is a ‘practical, nontechnical conception.’”
When police have probable cause to believe either (1) that evidence of crime will be found in a particular place or (2) that a certain person has committed a crime, important police action becomes lawful that would have remained unlawful absent probable cause. One important example involves vehicle stops; police may stop a car based on probable cause to believe that its driver has committed a traffic law violation. It is widely believed that many officers use this power for reasons other than traffic enforcement—for example, stopping drivers who violate trivial traffic rules in the hope of discovering evidence of more serious lawbreaking. In addition, some critics of police allege that at least some officers use their traffic-stop authority in ways that constitute unlawful discrimination, such as on the basis of race. Based on these beliefs and allegations, motorists have sought review of vehicle stops, justified by probable cause, on the basis of police officers’ “real” or “true” reasons for conducting the stops. The Court has resisted engaging in such review.
Supreme Court of the United States
Michael A. Whren v. United States
Decided June 10, 1996 – 517 U.S. 806
Justice SCALIA delivered the opinion of the [unanimous] Court.
In this case we decide whether the temporary detention of a motorist who the police have probable cause to believe has committed a civil traffic violation is inconsistent with the Fourth Amendment’s prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws.
I
On the evening of June 10, 1993, plainclothes vice-squad officers of the District of Columbia Metropolitan Police Department were patrolling a “high drug area” of the city in an unmarked car. Their suspicions were aroused when they passed a dark Pathfinder truck with temporary license plates and youthful occupants waiting at a stop sign, the driver looking down into the lap of the passenger at his right. The truck remained stopped at the intersection for what seemed an unusually long time—more than 20 seconds. When the police car executed a U-turn in order to head back toward the truck, the Pathfinder turned suddenly to its right, without signaling, and sped off at an “unreasonable” speed. The policemen followed, and in a short while overtook the Pathfinder when it stopped behind other traffic at a red light. They pulled up alongside, and Officer Ephraim Soto stepped out and approached the driver’s door, identifying himself as a police officer and directing the driver, petitioner Brown, to put the vehicle in park. When Soto drew up to the driver’s window, he immediately observed two large plastic bags of what appeared to be crack cocaine in petitioner Whren’s hands. Petitioners were arrested, and quantities of several types of illegal drugs were retrieved from the vehicle.
Petitioners were charged in a four-count indictment with violating various federal drug laws. At a pretrial suppression hearing, they challenged the legality of the stop and the resulting seizure of the drugs. They argued that the stop had not been justified by probable cause to believe, or even reasonable suspicion, that petitioners were engaged in illegal drug-dealing activity; and that Officer Soto’s asserted ground for approaching the vehicle—to give the driver a warning concerning traffic violations—was pretextual. The District Court denied the suppression motion, concluding that “the facts of the stop were not controverted,” and “[t]here was nothing to really demonstrate that the actions of the officers were contrary to a normal traffic stop.”
Petitioners were convicted of the counts at issue here. The Court of Appeals affirmed the convictions, holding with respect to the suppression issue that, “regardless of whether a police officer subjectively believes that the occupants of an automobile may be engaging in some other illegal behavior, a traffic stop is permissible as long as a reasonable officer in the same circumstances could have stopped the car for the suspected traffic violation.” We granted certiorari.
II
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a “seizure” of “persons” within the meaning of this provision. An automobile stop is thus subject to the constitutional imperative that it not be “unreasonable” under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.
Petitioners accept that Officer Soto had probable cause to believe that various provisions of the District of Columbia traffic code had been violated. They argue, however, that “in the unique context of civil traffic regulations” probable cause is not enough. Since, they contend, the use of automobiles is so heavily and minutely regulated that total compliance with traffic and safety rules is nearly impossible, a police officer will almost invariably be able to catch any given motorist in a technical violation. This creates the temptation to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists. Petitioners, who are both black, further contend that police officers might decide which motorists to stop based on decidedly impermissible factors, such as the race of the car’s occupants. To avoid this danger, they say, the Fourth Amendment test for traffic stops should be, not the normal one (applied by the Court of Appeals) of whether probable cause existed to justify the stop; but rather, whether a police officer, acting reasonably, would have made the stop for the reason given.
A
Petitioners contend that the standard they propose is consistent with our past cases’ disapproval of police attempts to use valid bases of action against citizens as pretexts for pursuing other investigatory agendas. We are reminded that [in previous cases] we stated that “an inventory search” must not be a ruse for a general rummaging in order to discover incriminating evidence”; that in approving an inventory search, we apparently thought it significant that there had been “no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation”; and that we observed, in upholding the constitutionality of a warrantless administrative inspection, that the search did not appear to be “a ‘pretext’ for obtaining evidence of … violation of … penal laws.” But only an undiscerning reader would regard these cases as endorsing the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred. In each case we were addressing the validity of a search conducted in the absence of probable cause. Our statements simply explain that the exemption from the need for probable cause (and warrant), which is accorded to searches made for the purpose of inventory or administrative regulation, is not accorded to searches that are not made for those purposes.
We think [our prior decisions] foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.
B
Recognizing that we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers, petitioners disavow any intention to make the individual officer’s subjective good faith the touchstone of “reasonableness.” They insist that the standard they have put forward—whether the officer’s conduct deviated materially from usual police practices, so that a reasonable officer in the same circumstances would not have made the stop for the reasons given—is an “objective” one.
But although framed in empirical terms, this approach is plainly and indisputably driven by subjective considerations. Its whole purpose is to prevent the police from doing under the guise of enforcing the traffic code what they would like to do for different reasons. Petitioners’ proposed standard may not use the word “pretext,” but it is designed to combat nothing other than the perceived “danger” of the pretextual stop, albeit only indirectly and over the run of cases. Instead of asking whether the individual officer had the proper state of mind, the petitioners would have us ask, in effect, whether (based on general police practices) it is plausible to believe that the officer had the proper state of mind.
Why one would frame a test designed to combat pretext in such fashion that the court cannot take into account actual and admitted pretext is a curiosity that can only be explained by the fact that our cases have foreclosed the more sensible option. If those cases were based only upon the evidentiary difficulty of establishing subjective intent, petitioners’ attempt to root out subjective vices through objective means might make sense. But they were not based only upon that, or indeed even principally upon that. Their principal basis—which applies equally to attempts to reach subjective intent through ostensibly objective means—is simply that the Fourth Amendment’s concern with “reasonableness” allows certain actions to be taken in certain circumstances, whatever the subjective intent. But even if our concern had been only an evidentiary one, petitioners’ proposal would by no means assuage it. Indeed, it seems to us somewhat easier to figure out the intent of an individual officer than to plumb the collective consciousness of law enforcement in order to determine whether a “reasonable officer” would have been moved to act upon the traffic violation. While police manuals and standard procedures may sometimes provide objective assistance, ordinarily one would be reduced to speculating about the hypothetical reaction of a hypothetical constable—an exercise that might be called virtual subjectivity.
Moreover, police enforcement practices, even if they could be practicably assessed by a judge, vary from place to place and from time to time. We cannot accept that the search and seizure protections of the Fourth Amendment are so variable and can be made to turn upon such trivialities. The difficulty is illustrated by petitioners’ arguments in this case. Their claim that a reasonable officer would not have made this stop is based largely on District of Columbia police regulations which permit plainclothes officers in unmarked vehicles to enforce traffic laws “only in the case of a violation that is so grave as to pose an immediate threat to the safety of others.” This basis of invalidation would not apply in jurisdictions that had a different practice. And it would not have applied even in the District of Columbia, if Officer Soto had been wearing a uniform or patrolling in a marked police cruiser.
III
In what would appear to be an elaboration on the “reasonable officer” test, petitioners argue that the balancing inherent in any Fourth Amendment inquiry requires us to weigh the governmental and individual interests implicated in a traffic stop such as we have here. That balancing, petitioners claim, does not support investigation of minor traffic infractions by plainclothes police in unmarked vehicles; such investigation only minimally advances the government’s interest in traffic safety, and may indeed retard it by producing motorist confusion and alarm—a view said to be supported by the Metropolitan Police Department’s own regulations generally prohibiting this practice. And as for the Fourth Amendment interests of the individuals concerned, petitioners point out that our cases acknowledge that even ordinary traffic stops entail “a possibly unsettling show of authority”; that they at best “interfere with freedom of movement, are inconvenient, and consume time” and at worst “may create substantial anxiety.” That anxiety is likely to be even more pronounced when the stop is conducted by plainclothes officers in unmarked cars.
It is of course true that in principle every Fourth Amendment case, since it turns upon a “reasonableness” determination, involves a balancing of all relevant factors. With rare exceptions not applicable here, however, the result of that balancing is not in doubt where the search or seizure is based upon probable cause.
Where probable cause has existed, the only cases in which we have found it necessary actually to perform the “balancing” analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individual’s privacy or even physical interests—such as, for example, seizure by means of deadly force, unannounced entry into a home, entry into a home without a warrant, or physical penetration of the body. The making of a traffic stop out of uniform does not remotely qualify as such an extreme practice, and so is governed by the usual rule that probable cause to believe the law has been broken “outbalances” private interest in avoiding police contact.
Petitioners urge as an extraordinary factor in this case that the “multitude of applicable traffic and equipment regulations” is so large and so difficult to obey perfectly that virtually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop. But we are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know by what standard (or what right) we would decide, as petitioners would have us do, which particular provisions are sufficiently important to merit enforcement.
For the run-of-the-mine case, which this surely is, we think there is no realistic alternative to the traditional common-law rule that probable cause justifies a search and seizure.
Here the District Court found that the officers had probable cause to believe that petitioners had violated the traffic code. That rendered the stop reasonable under the Fourth Amendment, the evidence thereby discovered admissible, and the upholding of the convictions by the Court of Appeals for the District of Columbia Circuit correct. The judgment is
Affirmed.
Notes, Comments, and Questions
The unanimous decision by the Court illustrates how important it is to the Justices to avoid creating legal rules and tests that require judges to guess what officers were thinking when performing certain actions. If the admissibility of evidence depends upon the mental state of a police officer during a stressful moment months or even years before a resulting evidentiary hearing, multiple problems are created. First, as a practical matter, determining what the officer was thinking when (for example) stopping a car will not be easy. Second, the officer may be tempted to commit perjury if her mental state was not the “correct” one under the relevant test.
In addition, the result in Whren exemplifies the Court’s apparent desire to avoid becoming in charge of day-to-day management of police departments. If the Court finds a constitutional requirement for departments to adopt certain best practices, then the Justices must (1) learn enough about policing to decide what practices should be required and (2) eventually hear more cases on whether departments are sufficiently obedient to the Court’s command. These prospects seem unappealing to the Justices. (Similar feelings may inform the Court’s decisions in education law cases. The Court has retreated from supervising school districts despite evidence that school segregation remains a serious problem.)
The Whren majority noted that if police indeed performed traffic stops on the basis of impermissible reasons related to the race of motorists, the stops might violate the Equal Protection Clause of the Fourteenth Amendment. The savvy reader might ask whether the Fourteenth Amendment applies at all. The traffic stop was in Washington, D.C. If the District of Columbia is not a “state,” and accordingly is not covered by the Fourteenth Amendment, then is racial discrimination allowed (or, to be more precise, is there no constitutional remedy)? The Court decided that there is a remedy. See Bolling v. Sharpe, 347 U.S. 497, 500 (1954), supplemented sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294 (1955) (establishing “reverse incorporation” of equal protection against the federal government) (“In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”).
Unfortunately for Whren, the Court has not allowed evidence to be excluded from criminal trials on the basis of Equal Protection violations; the legal remedy for such violations would come from civil lawsuits.
The Court’s holding in Whren illustrates the power of probable cause. Because the Court is so resistant to examining the motives of officers who take investigatory steps on the basis of probable cause, the term’s definition is of exceptional importance. In a 2018 case, the Court applied the standard set forth in Illinois v. Gates to new facts.
Supreme Court of the United States
District of Columbia v. Theodore Wesby
Decided Jan. 22, 2018 – 138 S. Ct. 577
Justice THOMAS delivered the opinion of the Court.
This case involves a civil suit against the District of Columbia and five of its police officers, brought by 16 individuals who were arrested for holding a raucous, late-night party in a house they did not have permission to enter. The United States Court of Appeals for the District of Columbia Circuit held that there was no probable cause to arrest the partygoers, and that the officers were not entitled to qualified immunity. We reverse on both grounds.
I
Around 1 a.m. on March 16, 2008, the District’s Metropolitan Police Department received a complaint about loud music and illegal activities at a house in Northeast D.C. The caller, a former neighborhood commissioner, told police that the house had been vacant for several months. When officers arrived at the scene, several neighbors confirmed that the house should have been empty. The officers approached the house and, consistent with the complaint, heard loud music playing inside.
After the officers knocked on the front door, they saw a man look out the window and then run upstairs. One of the partygoers opened the door, and the officers entered. They immediately observed that the inside of the house “‘was in disarray’” and looked like “‘a vacant property.’” The officers smelled marijuana and saw beer bottles and cups of liquor on the floor. In fact, the floor was so dirty that one of the partygoers refused to sit on it while being questioned. Although the house had working electricity and plumbing, it had no furniture downstairs other than a few padded metal chairs. The only other signs of habitation were blinds on the windows, food in the refrigerator, and toiletries in the bathroom.
In the living room, the officers found a makeshift strip club. Several women were wearing only bras and thongs, with cash tucked into their garter belts. The women were giving lap dances while other partygoers watched. Most of the onlookers were holding cash and cups of alcohol. After seeing the uniformed officers, many partygoers scattered into other parts of the house.
The officers found more debauchery upstairs. A naked woman and several men were in the bedroom. A bare mattress—the only one in the house—was on the floor, along with some lit candles and multiple open condom wrappers. A used condom was on the windowsill. The officers found one partygoer hiding in an upstairs closet, and another who had shut himself in the bathroom and refused to come out.
The officers found a total of 21 people in the house. After interviewing all 21, the officers did not get a clear or consistent story. Many partygoers said they were there for a bachelor party, but no one could identify the bachelor. Each of the partygoers claimed that someone had invited them to the house, but no one could say who. Two of the women working the party said that a woman named “Peaches” or “Tasty” was renting the house and had given them permission to be there. One of the women explained that the previous owner had recently passed away, and Peaches had just started renting the house from the grandson who inherited it. But the house had no boxes or moving supplies. She did not know Peaches’ real name. And Peaches was not there.
An officer asked the woman to call Peaches on her phone so he could talk to her. Peaches answered and explained that she had just left the party to go to the store. When the officer asked her to return, Peaches refused because she was afraid of being arrested. The sergeant supervising the investigation also spoke with Peaches. At first, Peaches claimed to be renting the house from the owner, who was fixing it up for her. She also said that she had given the attendees permission to have the party. When the sergeant again asked her who had given her permission to use the house, Peaches became evasive and hung up. The sergeant called her back, and she began yelling and insisting that she had permission before hanging up a second time. The officers eventually got Peaches on the phone again, and she admitted that she did not have permission to use the house.
The officers then contacted the owner. He told them that he had been trying to negotiate a lease with Peaches, but they had not reached an agreement. He confirmed that he had not given Peaches (or anyone else) permission to be in the house—let alone permission to use it for a bachelor party. At that point, the officers arrested the 21 partygoers for unlawful entry. The police transported the partygoers to the police station, where the lieutenant decided to charge them with disorderly conduct. The partygoers were released, and the charges were eventually dropped.
II
Respondents, 16 of the 21 partygoers, sued the District and five of the arresting officers. They sued the officers for false arrest under the Fourth Amendment. The partygoers’ claims were all “predicated upon the allegation that [they] were arrested without probable cause.”
On cross-motions for summary judgment, the District Court awarded partial summary judgment to the partygoers. It concluded that the officers lacked probable cause to arrest the partygoers for unlawful entry.1 The officers were told that Peaches had invited the partygoers to the house, the District Court reasoned, and nothing the officers learned in their investigation suggested the partygoers “‘knew or should have known that [they were] entering against the [owner’s] will.’” The District Court also concluded that the officers were not entitled to qualified immunity under § 1983. It noted that, under District case law, “probable cause to arrest for unlawful entry requires evidence that the alleged intruder knew or should have known, upon entry, that such entry was against the will of the owner.” And in its view, the officers had no such evidence.
With liability resolved, the case proceeded to trial on damages. The jury awarded the partygoers a total of \$680,000 in compensatory damages. After the District Court awarded attorney’s fees, the total award was nearly \$1 million.
On appeal, a divided panel of the D.C. Circuit affirmed. [T]he panel majority made Peaches’ invitation “central” to its determination that the officers lacked probable cause to arrest the partygoers for unlawful entry. The panel majority asserted that, “in the absence of any conflicting information, Peaches’ invitation vitiates the necessary element of [the partygoers’] intent to enter against the will of the lawful owner.” And the panel majority determined that “there is simply no evidence in the record that [the partygoers] had any reason to think the invitation was invalid.”
We granted certiorari to resolve [] whether the officers had probable cause to arrest the partygoers.
III
To determine whether an officer had probable cause for an arrest, “we examine the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause.” Because probable cause “deals with probabilities and depends on the totality of the circumstances,” it is “a fluid concept” that is “not readily, or even usefully, reduced to a neat set of legal rules.” It “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Probable cause “is not a high bar.”
A
There is no dispute that the partygoers entered the house against the will of the owner. Nonetheless, the partygoers contend that the officers lacked probable cause to arrest them because the officers had no reason to believe that they “knew or should have known” their “entry was unwanted.” We disagree. Considering the totality of the circumstances, the officers made an “entirely reasonable inference” that the partygoers were knowingly taking advantage of a vacant house as a venue for their late-night party.
Consider first the condition of the house. Multiple neighbors, including a former neighborhood official, informed the officers that the house had been vacant for several months. The house had no furniture, except for a few padded metal chairs and a bare mattress. The rest of the house was empty, save for some fixtures and large appliances. The house had a few signs of inhabitance—working electricity and plumbing, blinds on the windows, toiletries in the bathroom, and food in the refrigerator. But those facts are not necessarily inconsistent with the house being unoccupied. The owner could have paid the utilities and kept the blinds while he looked for a new tenant, and the partygoers could have brought the food and toiletries. Although one woman told the officers that Peaches had recently moved in, the officers had reason to doubt that was true. There were no boxes or other moving supplies in the house; nor were there other possessions, such as clothes in the closet, suggesting someone lived there.
In addition to the condition of the house, consider the partygoers’ conduct. The party was still going strong when the officers arrived after 1 a.m., with music so loud that it could be heard from outside. Upon entering the house, multiple officers smelled marijuana. The partygoers left beer bottles and cups of liquor on the floor, and they left the floor so dirty that one of them refused to sit on it. The living room had been converted into a makeshift strip club. Strippers in bras and thongs, with cash stuffed in their garter belts, were giving lap dances. Upstairs, the officers found a group of men with a single, naked woman on a bare mattress—the only bed in the house—along with multiple open condom wrappers and a used condom.
Taken together, the condition of the house and the conduct of the partygoers allowed the officers to make several “‘common-sense conclusions about human behavior.’” Most homeowners do not live in near-barren houses. And most homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside, and to leave their floors filthy. The officers could thus infer that the partygoers knew their party was not authorized.
The partygoers’ reaction to the officers gave them further reason to believe that the partygoers knew they lacked permission to be in the house. Many scattered at the sight of the uniformed officers. Two hid themselves, one in a closet and the other in a bathroom. “[U]nprovoked flight upon noticing the police,” we have explained, “is certainly suggestive” of wrongdoing and can be treated as “suspicious behavior” that factors into the totality of the circumstances. In fact, “deliberately furtive actions and flight at the approach of … law officers are strong indicia of mens rea.” A reasonable officer could infer that the partygoers’ scattering and hiding was an indication that they knew they were not supposed to be there.
The partygoers’ answers to the officers’ questions also suggested their guilty state of mind. When the officers asked who had given them permission to be there, the partygoers gave vague and implausible responses. They could not say who had invited them. Only two people claimed that Peaches had invited them, and they were working the party instead of attending it. If Peaches was the hostess, it was odd that none of the partygoers mentioned her name. Additionally, some of the partygoers claimed the event was a bachelor party, but no one could identify the bachelor. The officers could have disbelieved them, since people normally do not throw a bachelor party without a bachelor. Based on the vagueness and implausibility of the partygoers’ stories, the officers could have reasonably inferred that they were lying and that their lies suggested a guilty mind.
The panel majority relied heavily on the fact that Peaches said she had invited the partygoers to the house. But when the officers spoke with Peaches, she was nervous, agitated, and evasive. After initially insisting that she had permission to use the house, she ultimately confessed that this was a lie—a fact that the owner confirmed. Peaches’ lying and evasive behavior gave the officers reason to discredit everything she had told them. For example, the officers could have inferred that Peaches lied to them when she said she had invited the others to the house, which was consistent with the fact that hardly anyone at the party knew her name. Or the officers could have inferred that Peaches told the partygoers (like she eventually told the police) that she was not actually renting the house, which was consistent with how the partygoers were treating it.
Viewing these circumstances as a whole, a reasonable officer could conclude that there was probable cause to believe the partygoers knew they did not have permission to be in the house.
B
In concluding otherwise, the panel majority engaged in an “excessively technical dissection” of the factors supporting probable cause. Indeed, the panel majority failed to follow two basic and well-established principles of law.
First, the panel majority viewed each fact “in isolation, rather than as a factor in the totality of the circumstances.” This was “mistaken in light of our precedents.” The “totality of the circumstances” requires courts to consider “the whole picture.” Our precedents recognize that the whole is often greater than the sum of its parts—especially when the parts are viewed in isolation. Instead of considering the facts as a whole, the panel majority took them one by one. For example, it dismissed the fact that the partygoers “scattered or hid when the police entered the house” because that fact was “not sufficient standing alone to create probable cause.” Similarly, it found “nothing in the record suggesting that the condition of the house, on its own, should have alerted the [partygoers] that they were unwelcome.” The totality-of-the-circumstances test “precludes this sort of divide-and-conquer analysis.”
Second, the panel majority mistakenly believed that it could dismiss outright any circumstances that were “susceptible of innocent explanation.” For example, the panel majority brushed aside the drinking and the lap dances as “consistent with” the partygoers’ explanation that they were having a bachelor party. And it similarly dismissed the condition of the house as “entirely consistent with” Peaches being a “new tenant.” But probable cause does not require officers to rule out [sic] a suspect’s innocent explanation for suspicious facts. As we have explained, “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” Thus, the panel majority should have asked whether a reasonable officer could conclude—considering all of the surrounding circumstances, including the plausibility of the explanation itself—that there was a “substantial chance of criminal activity.”
For all of these reasons, we reverse the D.C. Circuit’s holding that the officers lacked probable cause to arrest. Accordingly, the District and its officers are entitled to summary judgment on all of the partygoers’ claims.
The judgment of the D.C. Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
Justice GINSBURG, concurring in the judgment in part.
This case, well described in the opinion of the Court of Appeals, leads me to question whether this Court, in assessing probable cause, should continue to ignore why police in fact acted. No arrests of plaintiffs-respondents were made until Sergeant Suber so instructed. His instruction, when conveyed to the officers he superintended, was based on an error of law. Sergeant Suber believed that the absence of the premises owner’s consent, an uncontested fact in this case, sufficed to justify arrest of the partygoers for unlawful entry. An essential element of unlawful entry in the District of Columbia is that the defendant “knew or should have known that his entry was unwanted.” But under Sergeant Suber’s view of the law, what the arrestees knew or should have known was irrelevant. They could be arrested, as he comprehended the law, even if they believed their entry was invited by a lawful occupant.
Ultimately, plaintiffs-respondents were not booked for unlawful entry. Instead, they were charged at the police station with disorderly conduct. Yet no police officers at the site testified to having observed any activities warranting a disorderly conduct charge. Quite the opposite. The officers at the scene of the arrest uniformly testified that they had neither seen nor heard anything that would justify such a charge, and Sergeant Suber specifically advised his superiors that the charge was unwarranted.
The Court’s jurisprudence, I am concerned, sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection. A number of commentators have criticized the path we charted in Whren v. United States, 517 U.S. 806 (1996), and follow-on opinions, holding that “an arresting officer’s state of mind … is irrelevant to the existence of probable cause.” I would leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry. Given the current state of the Court’s precedent, however, I agree that the disposition gained by plaintiffs-respondents [i.e., a ruling that officers violated their rights] was not warranted by “settled law.” The defendants-petitioners are therefore sheltered by qualified immunity.
Notes, Comments, and Questions
Does the procedural posture of this case change your view on the outcome? This is not a criminal prosecution, in which the defendants are arguing about probable cause to get their charges dismissed. This is a lawsuit by the people at the party, alleging that police violated their clearly established constitutional rights when arresting them.
The standard for probable cause is not especially high. It’s nothing like proof beyond a reasonable doubt or even preponderance of the evidence. In addition to “probable cause,” the Court has used several cases to define “reasonable suspicion,” which is more than a mere hunch but requires less evidence than probable cause. Certain police conduct—most importantly “stop and frisk”—is permissible on the basis of reasonable suspicion even if officers lack probable cause. We will review reasonable suspicion at length when studying stop and frisk.
As the semester progresses, students should make a point of noting (1) which police tactics are permissible with no evidence or suspicion whatsoever (for example, investigatory tactics that are not “searches,” such as opening a bag of trash left out for collection), (2) which tactics may not be conducted with no suspicion but are allowed with “reasonable suspicion,” and (3) which police tactics require probable cause. Among those police tactics requiring probable cause, students should note which require warrants.
The Phenomenon of “Driving While Black” or “Driving While Brown”
For decades, observers have documented that Black and brown drivers are more likely than white drivers to be stopped by police, a phenomenon sometimes described as “Driving While [Black/Brown]” or “DWB.” (Similar observations have been made about which pedestrians police choose to stop and frisk, a topic to which we will return.) U.S. Senator Tim Scott (R-S.C.) described in a 2016 speech his experiences as a Black motorist, along with incidents in which Capitol police questioned whether he really was a member of the Senate.2 Reporting that he had been stopped by police while driving seven times over the prior year, he asked colleagues to “imagine the frustration, the irritation the sense of a loss of dignity that accompanies each of those stops.”
Noting that in most of the incidents, “[He] was doing nothing more than driving a new car, in the wrong neighborhood, or some other reason just as trivial,” he said, “I have felt the anger, the frustration, the sadness and the humiliation that comes with feeling that you’re being targeted for nothing more than just being yourself.”
After being stopped by Capitol police, Sen. Scott received apologies on multiple occasions from police leadership. Most Americans, however, lack the social capital possessed by Senators and cannot expect that sort of response to complaints.
Although the cause of “DWB” stops is disputed, the existence of the phenomenon is well-documented,3 as are its effects on relations between police departments and minority communities. For example, one of your authors once attended an event in St. Louis at which a leader of the St. Louis City police said that certain St. Louis County police departments treat minority residents so badly, City police have trouble getting cooperation from potential witnesses, impeding the City department’s ability to solve serious crimes.
Robert Wilkins, now a federal appellate judge, was a plaintiff in 1990s litigation related to DWB stops in Maryland. A 2016 CBS News interview in which he describes his experiences is available here: [YouTube]
In the spring and summer of 2020, police treatment of members of minority communities—especially African Americans—once again received a national spotlight. The May 2020 killing of George Floyd by police in Minneapolis and the March 2020 killing of Breonna Taylor by police in Louisville aroused particular indignation, inspiring protests across the country. Police response to protests in some cities, including violence captured on video, inspired further calls for reform, along with more radical proposals.
As you read subsequent chapters, consider how Supreme Court criminal procedure decisions affect how police departments interact with communities they exist to serve. For example, does the Court’s Fourth Amendment doctrine encourage police officers to act in ways that build confidence among community members? When police officers violate rules set forth by the Court, do existing legal remedies encourage better future behavior? If you are unhappy with the state of policing, how might things be improved? If instead you think policing is going fairly well, to what do you attribute the discontent exhibited during the 2020 protests?
One purpose of this book is to help you consider questions like these. Recall, however, that most Americans will never attend law school. Knowledge of criminal procedure doctrine among the public is sketchy at best. If Americans better understood Supreme Court doctrine related to the Fourth, Fifth, and Sixth Amendments, do you think they would have more or less faith in the criminal justice system? Why? After finishing this book, answer these questions again and examine whether your own opinions have changed. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.05%3A_Chapter_6_-_Probable_Cause_and_Reasonable_Suspicion.txt |
Warrants
The Court has stated repeatedly that searches conducted without a warrant are presumptively “unreasonable” and, accordingly, are presumptive violations of the Fourth Amendment. Although one can argue whether the Court truly enforces a “warrant requirement”—see Justice Thomas’s dissent in Groh v. Ramirez below—one cannot deny the importance of valid warrants to a huge range of police conduct. For example, absent exceptional circumstances (such as officers chasing a fleeing felon), police normally must have a valid warrant to search a residence without the occupant’s permission.
To be valid, a warrant must obey the Fourth Amendment’s command that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This portion of the Amendment is known as the “Warrant Clause.” It requires: (1) that the evidence presented to the issuing judge or magistrate be sufficient to qualify as “probable cause,” (2) that the officers bringing the evidence to the judge or magistrate swear or affirm that the evidence is true to the best of their knowledge, (3) that the warrant specify where officers can search, and (4) that the warrant specify what things or persons officers may look for and may seize if found.
In addition, the Court has held that only a “neutral and detached magistrate” may issue a warrant. See Coolidge v. New Hampshire, 403 U.S. 443 (1971). That means the judge or magistrate must be independent of law enforcement; a state attorney general cannot issue warrants. In Connally v. Georgia, 429 U.S. 245 (1977), the Court held that a justice of the peace who received payment upon issuing a warrant, but no fee upon denying a warrant application, was not “neutral and detached.”
We have already studied the Court’s definition of “probable cause.” In the next cases, we examine the particularity requirement—the Fourth Amendment’s requirement that warrants specify in some detail where officers may search and what they may seize.
Supreme Court of the United States
Peter C. Andresen v. Maryland
Decided June 29, 1976 – 427 U.S. 463
Mr. Justice BLACKMUN delivered the opinion of the Court.
This case presents the issue whether the introduction into evidence of a person’s business records, seized during a search of his offices, violates the Fifth Amendment’s command that “[n]o person … shall be compelled in any criminal case to be a witness against himself.”1 We also must determine whether the particular searches and seizures here were “unreasonable” and thus violated the Fourth Amendment.
I
In early 1972, a Bi-County Fraud Unit, acting under the joint auspices of the State’s Attorneys’ Offices of Montgomery and Prince George’s Counties, Md., began an investigation of real estate settlement activities in the Washington, D.C., area. At the time, petitioner Andresen was an attorney who, as a sole practitioner, specialized in real estate settlements in Montgomery County. During the Fraud Unit’s investigation, his activities came under scrutiny, particularly in connection with a transaction involving Lot 13T in the Potomac Woods subdivision of Montgomery County. The investigation, which included interviews with the purchaser, the mortgage holder, and other lienholders of Lot 13T, as well as an examination of county land records, disclosed that petitioner, acting as settlement attorney, had defrauded Standard-Young Associates, the purchaser of Lot 13T. Petitioner had represented that the property was free of liens and that, accordingly, no title insurance was necessary, when in fact, he knew that there were two outstanding liens on the property. In addition, investigators learned that the lienholders, by threatening to foreclose their liens, had forced a halt to the purchaser’s construction on the property. When Standard-Young had confronted petitioner with this information, he responded by issuing, as an agent of a title insurance company, a title policy guaranteeing clear title to the property. By this action, petitioner also defrauded that insurance company by requiring it to pay the outstanding liens.
The investigators, concluding that there was probable cause to believe that petitioner had committed the state crime of false pretenses against Standard-Young, applied for warrants to search petitioner’s law office and the separate office of Mount Vernon Development Corporation, of which petitioner was incorporator, sole shareholder, resident agent, and director. The application sought permission to search for specified documents pertaining to the sale and conveyance of Lot 13T. A judge of the Sixth Judicial Circuit of Montgomery County concluded that there was probable cause and issued the warrants.
Petitioner eventually was charged, partly by information and partly by indictment, with the crime of false pretenses, based on his misrepresentation to Standard-Young concerning Lot 13T, and with fraudulent misappropriation by a fiduciary, based on similar false claims made to three home purchasers. Before trial began, petitioner moved to suppress the seized documents. The trial court held a full suppression hearing. [T]he only item seized from the corporation’s offices that was not returned by the State or suppressed was a single file labeled “Potomac Woods General.”
With respect to all the items not suppressed or returned, the trial court ruled that admitting them into evidence would not violate the Fourth Amendment[ ]. [T]he search warrants were based on probable cause, and the documents not returned or suppressed were either directly related to Lot 13T, and therefore within the express language of the warrants, or properly seized and otherwise admissible to show a pattern of criminal conduct relevant to the charge concerning Lot 13T.
At trial, the State proved its case primarily by public land records and by records provided by the complaining purchasers, lienholders, and the title insurance company. It did introduce into evidence, however, a number of the seized items. Three documents from the “Potomac Woods General” file, seized during the search of petitioner’s corporation, were admitted. These were notes in the handwriting of an employee who used them to prepare abstracts in the course of his duties as a title searcher and law clerk. The notes concerned deeds of trust affecting the Potomac Woods subdivision and related to the transaction involving Lot 13T. Five items seized from petitioner’s law office were also admitted. One contained information relating to the transactions with one of the defrauded home buyers. The second was a file partially devoted to the Lot 13T transaction; among the documents were settlement statements, the deed conveying the property to Standard-Young Associates, and the original and a copy of a notice to the buyer about releases of liens. The third item was a file devoted exclusively to Lot 13T. The fourth item consisted of a copy of a deed of trust, dated March 27, 1972, from the seller of certain lots in the Potomac Woods subdivision to a lienholder. The fifth item contained drafts of documents and memoranda written in petitioner’s handwriting.
After a trial by jury, petitioner was found guilty upon five counts of false pretenses and three counts of fraudulent misappropriation by a fiduciary. He was sentenced to eight concurrent two-year prison terms. [T]he Court of Special Appeals rejected petitioner’s Fourth and Fifth Amendment Claims. Specifically, it held that the warrants were supported by probable cause, that they did not authorize a general search in violation of the Fourth Amendment, and that the items admitted into evidence against petitioner at trial were within the scope of the warrants or were otherwise properly seized. We granted certiorari limited to the Fourth and Fifth Amendment issues.
III
We turn [] to petitioner’s contention that rights guaranteed him by the Fourth Amendment were violated because the descriptive terms of the search warrants were so broad as to make them impermissible “general” warrants.
The specificity of the search warrants. Although petitioner concedes that the warrants for the most part were models of particularity, he contends that they were rendered fatally “general” by the addition, in each warrant, to the exhaustive list of particularly described documents, of the phrase “together with other fruits, instrumentalities and evidence of crime at this [time] unknown.” The quoted language, it is argued, must be read in isolation and without reference to the rest of the long sentence at the end of which it appears. When read “properly,” petitioner contends, it permits the search for and seizure of any evidence of any crime.
General warrants of course, are prohibited by the Fourth Amendment. “[T]he problem [posed by the general warrant] is not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings. … [The Fourth Amendment addresses the problem] by requiring a ‘particular description’ of the things to be seized.” This requirement “‘makes general searches … impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.’”
In this case we agree with the determination of the Court of Special Appeals of Maryland that the challenged phrase must be read as authorizing only the search for and seizure of evidence relating to “the crime of false pretenses with respect to Lot 13T.” The challenged phrase is not a separate sentence. Instead, it appears in each warrant at the end of a sentence containing a lengthy list of specified and particular items to be seized, all pertaining to Lot 13T.2 We think it clear from the context that the term “crime” in the warrants refers only to the crime of false pretenses with respect to the sale of Lot 13T. The “other fruits” clause is one of a series that follows the colon after the word “Maryland.” All clauses in the series are limited by what precedes that colon, namely, “items pertaining to … lot 13, block T.” The warrants, accordingly, did not authorize the executing officers to conduct a search for evidence of other crimes but only to search for and seize evidence relevant to the crime of false pretenses and Lot 13T.3
The judgment of the Court of Special Appeals of Maryland is affirmed.
Mr. Justice BRENNAN, dissenting.
I believe that the warrants under which petitioner’s papers were seized were impermissibly general. I therefore dissent.
[T]he warrants under which those papers were seized were impermissibly general. General warrants are specially prohibited by the Fourth Amendment. The problem to be avoided is “not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings.” Thus the requirement plainly appearing on the face of the Fourth Amendment that a warrant specify with particularity the place to be searched and the things to be seized is imposed to the end that “unauthorized invasions of ‘the sanctity of a man’s home and the privacies of life’” be prevented. “‘As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.’”
The Court recites these requirements, but their application in this case renders their limitation on unlawful governmental conduct an empty promise. After a lengthy and admittedly detailed listing of items to be seized, the warrants in this case further authorized the seizure of “other fruits, instrumentalities and evidence of crime at this [time] unknown.” The Court construes this sweeping authorization to be limited to evidence pertaining to the crime of false pretenses with respect to the sale of Lot 13T. However, neither this Court’s construction of the warrants nor the similar construction by the Court of Special Appeals of Maryland was available to the investigators at the time they executed the warrants. The question is not how those warrants are to be viewed in hindsight, but how they were in fact viewed by those executing them. The overwhelming quantity of seized material that was either suppressed or returned to petitioner is irrefutable testimony to the unlawful generality of the warrants. The Court’s attempt to cure this defect by post hoc judicial construction evades principles settled in this Court’s Fourth Amendment decisions. “The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge ….” It is not the function of a detached and neutral review to give effect to warrants whose terms unassailably authorize the far-reaching search and seizure of a person’s papers especially where that has in fact been the result of executing those warrants.
Notes, Comments, and Questions
In Andresen, the long list of items (even with the “other fruits, instrumentalities and evidence” language does not constitute a “general warrant.” What if instead the list of items subject to seizure had read (in its entirety), “Evidence of real estate fraud”? Would that be sufficient? Should it be?
Or, to move away from the complicated context of searching a lawyer’s office, consider a case in which police lawfully arrest someone for marijuana possession. The suspect tells police that he purchased the marijuana at a certain house and provides the address. If police obtain a warrant to search the house, is it sufficient for the warrant to list the items subject to seizure as “marijuana and other evidence of marijuana possession and sale”?
Students may wonder why the inclusion of “the persons or things to be seized” in a warrant will matter in practice. The following scenarios may help explain:
Imagine that police have probable cause to believe that a stolen piano is located in a suspect’s house. If the warrant authorizes police to search the house for “a black Steinway Model B grand piano,” the police may search any location in the house at which the piano might reasonably be found. That means police likely can enter any room. But unless the house contains unusually massive medicine cabinets, police likely cannot open a medicine cabinet. Therefore, drugs found in a medicine cabinet would be the fruits of an unlawful search.
By contrast, if police seek stolen earrings, and the warrant authorizes police to search the house for “two diamond stud earrings, with platinum settings,” then police can open medicine cabinets, drawers, and all sorts of places in which earrings can be hidden but pianos cannot.
In addition, imagine that police are searching for both the piano and the earrings. If the warrant lists only the piano, then police should end their search promptly if they find the piano just inside the front door; they have no other items listed in the warrant to find. If instead the warrant lists both the piano and the earrings, then police may continue their search after finding the piano—examining every crevice in which earrings might be found.
In the next case, the Court considered a warrant that failed entirely to state what items officers were permitted to seize when searching a certain house.
Supreme Court of the United States
Jeff Groh v. Joseph R. Ramirez
Decided Feb. 24, 2004 – 540 U.S. 551
Justice STEVENS delivered the opinion of the Court.
Petitioner conducted a search of respondents’ home pursuant to a warrant that failed to describe the “persons or things to be seized.” The question[] presented [is] whether the search violated the Fourth Amendment.
I
Respondents, Joseph Ramirez and members of his family, live on a large ranch in Butte-Silver Bow County, Montana. Petitioner, Jeff Groh, has been a Special Agent for the Bureau of Alcohol, Tobacco and Firearms (ATF) since 1989. In February 1997, a concerned citizen informed petitioner that on a number of visits to respondents’ ranch the visitor had seen a large stock of weaponry, including an automatic rifle, grenades, a grenade launcher, and a rocket launcher. Based on that information, petitioner prepared and signed an application for a warrant to search the ranch. The application stated that the search was for “any automatic firearms or parts to automatic weapons, destructive devices to include but not limited to grenades, grenade launchers, rocket launchers, and any and all receipts pertaining to the purchase or manufacture of automatic weapons or explosive devices or launchers.” Petitioner supported the application with a detailed affidavit, which he also prepared and executed, that set forth the basis for his belief that the listed items were concealed on the ranch. Petitioner then presented these documents to a Magistrate, along with a warrant form that petitioner also had completed. The Magistrate signed the warrant form.
Although the application particularly described the place to be searched and the contraband petitioner expected to find, the warrant itself was less specific; it failed to identify any of the items that petitioner intended to seize. In the portion of the form that called for a description of the “person or property” to be seized, petitioner typed a description of respondents’ two-story blue house rather than the alleged stockpile of firearms. The warrant did not incorporate by reference the itemized list contained in the application. It did, however, recite that the Magistrate was satisfied the affidavit established probable cause to believe that contraband was concealed on the premises, and that sufficient grounds existed for the warrant’s issuance.
The day after the Magistrate issued the warrant, petitioner led a team of law enforcement officers, including both federal agents and members of the local sheriff’s department, in the search of respondents’ premises. Although respondent Joseph Ramirez was not home, his wife and children were. Petitioner states that he orally described the objects of the search to Mrs. Ramirez in person and to Mr. Ramirez by telephone. According to Mrs. Ramirez, however, petitioner explained only that he was searching for “‘an explosive device in a box.’” At any rate, the officers’ search uncovered no illegal weapons or explosives. When the officers left, petitioner gave Mrs. Ramirez a copy of the search warrant, but not a copy of the application, which had been sealed. The following day, in response to a request from respondents’ attorney, petitioner faxed the attorney a copy of the page of the application that listed the items to be seized. No charges were filed against the Ramirezes.
Respondents sued petitioner and the other officers, raising eight claims, including violation of the Fourth Amendment. The District Court entered summary judgment for all defendants. The court found no Fourth Amendment violation, because it considered the case comparable to one in which the warrant contained an inaccurate address, and in such a case, the court reasoned, the warrant is sufficiently detailed if the executing officers can locate the correct house.
The Court of Appeals affirmed the judgment with respect to all defendants and all claims, with the exception of respondents’ Fourth Amendment claim against petitioner. On that claim, the court held that the warrant was invalid because it did not “describe with particularity the place to be searched and the items to be seized,” and that oral statements by petitioner during or after the search could not cure the omission. The court observed that the warrant’s facial defect “increased the likelihood and degree of confrontation between the Ramirezes and the police” and deprived respondents of the means “to challenge officers who might have exceeded the limits imposed by the magistrate.” The court also expressed concern that “permitting officers to expand the scope of the warrant by oral statements would broaden the area of dispute between the parties in subsequent litigation.”
II
The warrant was plainly invalid. The Fourth Amendment states unambiguously that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (Emphasis added.) The warrant in this case complied with the first three of these requirements: It was based on probable cause and supported by a sworn affidavit, and it described particularly the place of the search. On the fourth requirement, however, the warrant failed altogether. Indeed, petitioner concedes that “the warrant … was deficient in particularity because it provided no description of the type of evidence sought.”
The fact that the application adequately described the “things to be seized” does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents. And for good reason: “The presence of a search warrant serves a high function,” and that high function is not necessarily vindicated when some other document, somewhere, says something about the objects of the search, but the contents of that document are neither known to the person whose home is being searched nor available for her inspection. We do not say that the Fourth Amendment prohibits a warrant from cross-referencing other documents. Indeed, most Courts of Appeals have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant. But in this case the warrant did not incorporate other documents by reference, nor did either the affidavit or the application (which had been placed under seal) accompany the warrant. Hence, we need not further explore the matter of incorporation.
Petitioner argues that even though the warrant was invalid, the search nevertheless was “reasonable” within the meaning of the Fourth Amendment. He notes that a Magistrate authorized the search on the basis of adequate evidence of probable cause, that petitioner orally described to respondents the items to be seized, and that the search did not exceed the limits intended by the Magistrate and described by petitioner. Thus, petitioner maintains, his search of respondents’ ranch was functionally equivalent to a search authorized by a valid warrant.
We disagree. This warrant did not simply omit a few items from a list of many to be seized, or misdescribe a few of several items. Nor did it make what fairly could be characterized as a mere technical mistake or typographical error. Rather, in the space set aside for a description of the items to be seized, the warrant stated that the items consisted of a “single dwelling residence … blue in color.” In other words, the warrant did not describe the items to be seized at all. In this respect the warrant was so obviously deficient that we must regard the search as “warrantless” within the meaning of our case law. “We are not dealing with formalities.” Because “‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion’” stands “‘[a]t the very core’ of the Fourth Amendment,” our cases have firmly established the “‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable,” Thus, “absent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within.”
We have clearly stated that the presumptive rule against warrantless searches applies with equal force to searches whose only defect is a lack of particularity in the warrant.
Petitioner asks us to hold that a search conducted pursuant to a warrant lacking particularity should be exempt from the presumption of unreasonableness if the goals served by the particularity requirement are otherwise satisfied. He maintains that the search in this case satisfied those goals—which he says are “to prevent general searches, to prevent the seizure of one thing under a warrant describing another, and to prevent warrants from being issued on vague or dubious information” because the scope of the search did not exceed the limits set forth in the application. But unless the particular items described in the affidavit are also set forth in the warrant itself (or at least incorporated by reference, and the affidavit present at the search), there can be no written assurance that the Magistrate actually found probable cause to search for, and to seize, every item mentioned in the affidavit. In this case, for example, it is at least theoretically possible that the Magistrate was satisfied that the search for weapons and explosives was justified by the showing in the affidavit, but not convinced that any evidentiary basis existed for rummaging through respondents’ files and papers for receipts pertaining to the purchase or manufacture of such items. Or, conceivably, the Magistrate might have believed that some of the weapons mentioned in the affidavit could have been lawfully possessed and therefore should not be seized. The mere fact that the Magistrate issued a warrant does not necessarily establish that he agreed that the scope of the search should be as broad as the affiant’s request. Even though petitioner acted with restraint in conducting the search, “the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer.”
We have long held, moreover, that the purpose of the particularity requirement is not limited to the prevention of general searches. A particular warrant also “assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.”
Petitioner argues that even if the goals of the particularity requirement are broader than he acknowledges, those goals nevertheless were served because he orally described to respondents the items for which he was searching. Thus, he submits, respondents had all of the notice that a proper warrant would have accorded. But this case presents no occasion even to reach this argument, since respondents, as noted above, dispute petitioner’s account. According to Mrs. Ramirez, petitioner stated only that he was looking for an “‘explosive device in a box.’” Because this dispute is before us on petitioner’s motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” The posture of the case therefore obliges us to credit Mrs. Ramirez’s account, and we find that petitioner’s description of “‘an explosive device in a box’” was little better than no guidance at all.
It is incumbent on the officer executing a search warrant to ensure the search is lawfully authorized and lawfully conducted. Because petitioner did not have in his possession a warrant particularly describing the things he intended to seize, proceeding with the search was clearly “unreasonable” under the Fourth Amendment. The Court of Appeals correctly held that the search was unconstitutional.
Justice THOMAS, with whom Justice SCALIA joins, dissenting.
The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The precise relationship between the Amendment’s Warrant Clause and Unreasonableness Clause is unclear. But neither Clause explicitly requires a warrant. While “it is of course textually possible to consider [a warrant requirement] implicit within the requirement of reasonableness,” the text of the Fourth Amendment certainly does not mandate this result. Nor does the Amendment’s history, which is clear as to the Amendment’s principal target (general warrants), but not as clear with respect to when warrants were required, if ever. Indeed, because of the very different nature and scope of federal authority and ability to conduct searches and arrests at the founding, it is possible that neither the history of the Fourth Amendment nor the common law provides much guidance.
As a result, the Court has vacillated between imposing a categorical warrant requirement and applying a general reasonableness standard. Today the Court holds that the warrant in this case was “so obviously deficient” that the ensuing search must be regarded as a warrantless search and thus presumptively unreasonable. However, the text of the Fourth Amendment, its history, and the sheer number of exceptions to the Court’s categorical warrant requirement seriously undermine the bases upon which the Court today rests its holding. Instead of adding to this confusing jurisprudence, as the Court has done, I would turn to first principles in order to determine the relationship between the Warrant Clause and the Unreasonableness Clause. But even within the Court’s current framework, a search conducted pursuant to a defective warrant is constitutionally different from a “warrantless search.” Consequently, despite the defective warrant, I would still ask whether this search was unreasonable and would conclude that it was not. For these reasons, I respectfully dissent.
I
“[A]ny Fourth Amendment case may present two separate questions: whether the search was conducted pursuant to a warrant issued in accordance with the second Clause, and, if not, whether it was nevertheless ‘reasonable’ within the meaning of the first.” By categorizing the search here to be a “warrantless” one, the Court declines to perform a reasonableness inquiry and ignores the fact that this search is quite different from searches that the Court has considered to be “warrantless” in the past. Our cases involving “warrantless” searches do not generally involve situations in which an officer has obtained a warrant that is later determined to be facially defective, but rather involve situations in which the officers neither sought nor obtained a warrant. By simply treating this case as if no warrant had even been sought or issued, the Court glosses over what should be the key inquiry: whether it is always appropriate to treat a search made pursuant to a warrant that fails to describe particularly the things to be seized as presumptively unreasonable.
The Court also rejects the argument that the details of the warrant application and affidavit save the warrant, because “‘[t]he presence of a search warrant serves a high function.’” But it is not only the physical existence of the warrant and its typewritten contents that serve this high function. The Warrant Clause’s principal protection lies in the fact that the “‘Fourth Amendment has interposed a magistrate between the citizen and the police … so that an objective mind might weigh the need to invade [the searchee’s] privacy in order to enforce the law.’” The Court has further explained:
“The point of the Fourth Amendment … is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers …. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”
But the actual contents of the warrant are simply manifestations of this protection. Hence, in contrast to the case of a truly warrantless search, where a warrant (due to a mistake) does not specify on its face the particular items to be seized but the warrant application passed on by the magistrate judge contains such details, a searchee still has the benefit of a determination by a neutral magistrate that there is probable cause to search a particular place and to seize particular items. In such a circumstance, the principal justification for applying a rule of presumptive unreasonableness falls away.
In the instant case, the items to be seized were clearly specified in the warrant application and set forth in the affidavit, both of which were given to the Judge (Magistrate). The Magistrate reviewed all of the documents and signed the warrant application and made no adjustment or correction to this application. It is clear that respondents here received the protection of the Warrant Clause. Under these circumstances, I would not hold that any ensuing search constitutes a presumptively unreasonable warrantless search. Instead, I would determine whether, despite the invalid warrant, the resulting search was reasonable and hence constitutional.
II
Because the search was not unreasonable, I would conclude that it was constitutional. Prior to execution of the warrant, petitioner briefed the search team and provided a copy of the search warrant application, the supporting affidavit, and the warrant for the officers to review. Petitioner orally reviewed the terms of the warrant with the officers, including the specific items for which the officers were authorized to search. Petitioner and his search team then conducted the search entirely within the scope of the warrant application and warrant; that is, within the scope of what the Magistrate had authorized. Finding no illegal weapons or explosives, the search team seized nothing. When petitioner left, he gave respondents a copy of the search warrant. Upon request the next day, petitioner faxed respondents a copy of the more detailed warrant application. Indeed, putting aside the technical defect in the warrant, it is hard to imagine how the actual search could have been carried out any more reasonably.
The Court argues that this eminently reasonable search is nonetheless unreasonable because “there can be no written assurance that the Magistrate actually found probable cause to search for, and to seize, every item mentioned in the affidavit” “unless the particular items described in the affidavit are also set forth in the warrant itself.” The Court argues that it was at least possible that the Magistrate intended to authorize a much more limited search than the one petitioner requested. As a theoretical matter, this may be true. But the more reasonable inference is that the Magistrate intended to authorize everything in the warrant application, as he signed the application and did not make any written adjustments to the application or the warrant itself.
The Court also attempts to bolster its focus on the faulty warrant by arguing that the purpose of the particularity requirement is not only to prevent general searches, but also to assure the searchee of the lawful authority for the search. But as the Court recognizes, neither the Fourth Amendment nor Federal Rule of Criminal Procedure 41 requires an officer to serve the warrant on the searchee before the search. Thus, a search should not be considered per se unreasonable for failing to apprise the searchee of the lawful authority prior to the search, especially where, as here, the officer promptly provides the requisite information when the defect in the papers is detected. Additionally, unless the Court adopts the Court of Appeals’ view that the Constitution protects a searchee’s ability to “be on the lookout and to challenge officers,” while the officers are actually carrying out the search, petitioner’s provision of the requisite information the following day is sufficient to satisfy this interest.
For the foregoing reasons, I respectfully dissent.
* * *
In the next two cases, the Court considers a recurring question related to how officers may execute a valid warrant. Specifically, the question is whether officers must “knock and announce” before breaking in someone’s door to conduct a search pursuant to a warrant. Even more specifically, the question is whether the Fourth Amendment generally requires the knocking and announcing and, if so, what exceptions limit the general rule.
Supreme Court of the United States
Sharlene Wilson v. Arkansas
Decided May 22, 1995 – 514 U.S. 927
Justice THOMAS delivered the opinion of the [unanimous] Court.
At the time of the framing, the common law of search and seizure recognized a law enforcement officer’s authority to break open the doors of a dwelling, but generally indicated that he first ought to announce his presence and authority. In this case, we hold that this common-law “knock and announce” principle forms a part of the reasonableness inquiry under the Fourth Amendment.
I
During November and December 1992, petitioner Sharlene Wilson made a series of narcotics sales to an informant acting at the direction of the Arkansas State Police. In late November, the informant purchased marijuana and methamphetamine at the home that petitioner shared with Bryson Jacobs. On December 30, the informant telephoned petitioner at her home and arranged to meet her at a local store to buy some marijuana. According to testimony presented below, petitioner produced a semiautomatic pistol at this meeting and waved it in the informant’s face, threatening to kill her if she turned out to be working for the police. Petitioner then sold the informant a bag of marijuana.
The next day, police officers applied for and obtained warrants to search petitioner’s home and to arrest both petitioner and Jacobs. Affidavits filed in support of the warrants set forth the details of the narcotics transactions and stated that Jacobs had previously been convicted of arson and firebombing. The search was conducted later that afternoon. Police officers found the main door to petitioner’s home open. While opening an unlocked screen door and entering the residence, they identified themselves as police officers and stated that they had a warrant. Once inside the home, the officers seized marijuana, methamphetamine, valium, narcotics paraphernalia, a gun, and ammunition. They also found petitioner in the bathroom, flushing marijuana down the toilet. Petitioner and Jacobs were arrested and charged with delivery of marijuana, delivery of methamphetamine, possession of drug paraphernalia, and possession of marijuana.
Before trial, petitioner filed a motion to suppress the evidence seized during the search. Petitioner asserted that the search was invalid on various grounds, including that the officers had failed to “knock and announce” before entering her home. The trial court summarily denied the suppression motion. After a jury trial, petitioner was convicted of all charges and sentenced to 32 years in prison.
The Arkansas Supreme Court affirmed petitioner’s conviction on appeal. The court noted that “the officers entered the home while they were identifying themselves,” but it rejected petitioner’s argument that “the Fourth Amendment requires officers to knock and announce prior to entering the residence.” Finding “no authority for [petitioner’s] theory that the knock and announce principle is required by the Fourth Amendment,” the court concluded that neither Arkansas law nor the Fourth Amendment required suppression of the evidence.
We granted certiorari to resolve the conflict among the lower courts as to whether the common-law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry. We hold that it does, and accordingly reverse and remand.
II
The Fourth Amendment to the Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In evaluating the scope of this right, we have looked to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing. “Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable,” our effort to give content to this term may be guided by the meaning ascribed to it by the Framers of the Amendment. An examination of the common law of search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering.
Although the common law generally protected a man’s house as “his castle of defense and asylum,” common-law courts long have held that “when the King is party, the sheriff (if the doors be not open) may break the party’s house, either to arrest him, or to do other execution of the K[ing]’s process, if otherwise he cannot enter.” To this rule, however, common-law courts appended an important qualification:
“But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors …, for the law without a default in the owner abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps he did not know of the process, of which, if he had notice, it is to be presumed that he would obey it….”
Several prominent founding-era commentators agreed on this basic principle. According to Sir Matthew Hale, the “constant practice” at common law was that “the officer may break open the door, if he be sure the offender is there, if after acquainting them of the business, and demanding the prisoner, he refuses to open the door.” William Hawkins propounded a similar principle: “the law doth never allow” an officer to break open the door of a dwelling “but in cases of necessity,” that is, unless he “first signify to those in the house the cause of his coming, and request them to give him admittance.” Sir William Blackstone stated simply that the sheriff may “justify breaking open doors, if the possession be not quietly delivered.”
The common-law knock and announce principle was woven quickly into the fabric of early American law. Most of the States that ratified the Fourth Amendment had enacted constitutional provisions or statutes generally incorporating English common law, and a few States had enacted statutes specifically embracing the common-law view that the breaking of the door of a dwelling was permitted once admittance was refused.
Our own cases have acknowledged that the common law principle of announcement is “embedded in Anglo-American law,” but we have never squarely held that this principle is an element of the reasonableness inquiry under the Fourth Amendment. We now so hold. Given the longstanding common-law endorsement of the practice of announcement, we have little doubt that the Framers of the Fourth Amendment thought that the method of an officer’s entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure. Contrary to the decision below, we hold that in some circumstances an officer’s unannounced entry into a home might be unreasonable under the Fourth Amendment.
This is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests. As even petitioner concedes, the common-law principle of announcement was never stated as an inflexible rule requiring announcement under all circumstances.
Indeed, at the time of the framing, the common-law admonition that an officer “ought to signify the cause of his coming” had not been extended conclusively to the context of felony arrests. The common-law principle gradually was applied to cases involving felonies, but at the same time the courts continued to recognize that under certain circumstances the presumption in favor of announcement necessarily would give way to contrary considerations.
Thus, because the common-law rule was justified in part by the belief that announcement generally would avoid “the destruction or breaking of any house … by which great damage and inconvenience might ensue,” courts acknowledged that the presumption in favor of announcement would yield under circumstances presenting a threat of physical violence. Similarly, courts held that an officer may dispense with announcement in cases where a prisoner escapes from him and retreats to his dwelling. Proof of “demand and refusal” was deemed unnecessary in such cases because it would be a “senseless ceremony” to require an officer in pursuit of a recently escaped arrestee to make an announcement prior to breaking the door to retake him. Finally, courts have indicated that unannounced entry may be justified where police officers have reason to believe that evidence would likely be destroyed if advance notice were given.
We need not attempt a comprehensive catalog of the relevant countervailing factors here. For now, we leave to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment. We simply hold that although a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish the reasonableness of an unannounced entry.
III
Respondent contends that the judgment below should be affirmed because the unannounced entry in this case was justified for two reasons. First, respondent argues that police officers reasonably believed that a prior announcement would have placed them in peril, given their knowledge that petitioner had threatened a government informant with a semiautomatic weapon and that Mr. Jacobs had previously been convicted of arson and firebombing. Second, respondent suggests that prior announcement would have produced an unreasonable risk that petitioner would destroy easily disposable narcotics evidence.
These considerations may well provide the necessary justification for the unannounced entry in this case. Because the Arkansas Supreme Court did not address their sufficiency, however, we remand to allow the state courts to make any necessary findings of fact and to make the determination of reasonableness in the first instance. The judgment of the Arkansas Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Notes, Comments, and Questions
In Wilson, the Court stated that obeying the “knock and announce” rule was part of conducting a “reasonable” search under the Fourth Amendment. The Court also stated, however, that certain searches may be conducted without knocking and announcing. Indeed, after the Court remanded Sharlene Wilson’s case to the Arkansas court system, she was not released. It seems that Arkansas courts determined that under the facts presented, it was reasonable for officers to enter Wilson’s home without knocking and announcing.
Although best known to today’s students for her role in knock-and-announce doctrine, Sharlene Wilson was briefly famous two decades ago—at least among followers of certain conspiracy theories—for other reasons. During her imprisonment, it was reported that Wilson claimed to have seen then-Arkansas Governor Bill Clinton using cocaine and attending “cocaine parties.” It was also suggested that Wilson had been sent to prison in an effort to prevent her from harming Clinton’s political ambitions. Her case was celebrated by certain activists who sought her release, and Governor Mike Huckabee (father of future White House press secretary Sarah Sanders) reduced her sentence in 1999, making Wilson eligible for parole. Then, after marrying Bryson Jacobs—the boyfriend mentioned in the Wilson opinion—she began a ministry tour.
In the next case, the Court attempted to provide more guidance about when knocking and announcing is not required.
Supreme Court of the United States
Steiney Richards v. Wisconsin
Decided April 28, 1997 – 520 U.S. 385
Justice STEVENS delivered the opinion of the [unanimous] Court.
In Wilson v. Arkansas, we held that the Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. At the same time, we recognized that the “flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests,” and left “to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment.”
In this case, the Wisconsin Supreme Court concluded that police officers are never required to knock and announce their presence when executing a search warrant in a felony drug investigation. In so doing, it reaffirmed a pre-Wilson holding and concluded that Wilson did not preclude this per se rule. We disagree with the court’s conclusion that the Fourth Amendment permits a blanket exception to the knock-and-announce requirement for this entire category of criminal activity. But because the evidence presented to support the officers’ actions in this case establishes that the decision not to knock and announce was a reasonable one under the circumstances, we affirm the judgment of the Wisconsin court.
I
On December 31, 1991, police officers in Madison, Wisconsin, obtained a warrant to search Steiney Richards’ motel room for drugs and related paraphernalia. The search warrant was the culmination of an investigation that had uncovered substantial evidence that Richards was one of several individuals dealing drugs out of motel rooms in Madison. The police requested a warrant that would have given advance authorization for a “no-knock” entry into the motel room, but the Magistrate explicitly deleted those portions of the warrant.
The officers arrived at the motel room at 3:40 a.m. Officer Pharo, dressed as a maintenance man, led the team. With him were several plainclothes officers and at least one man in uniform. Officer Pharo knocked on Richards’ door and, responding to the query from inside the room, stated that he was a maintenance man. With the chain still on the door, Richards cracked it open. Although there is some dispute as to what occurred next, Richards acknowledges that when he opened the door he saw the man in uniform standing behind Officer Pharo. He quickly slammed the door closed and, after waiting two or three seconds, the officers began kicking and ramming the door to gain entry to the locked room. At trial, the officers testified that they identified themselves as police while they were kicking the door in. When they finally did break into the room, the officers caught Richards trying to escape through the window. They also found cash and cocaine hidden in plastic bags above the bathroom ceiling tiles.
Richards sought to have the evidence from his motel room suppressed on the ground that the officers had failed to knock and announce their presence prior to forcing entry into the room. The trial court denied the motion, concluding that the officers could gather from Richards’ strange behavior when they first sought entry that he knew they were police officers and that he might try to destroy evidence or to escape. The judge emphasized that the easily disposable nature of the drugs the police were searching for further justified their decision to identify themselves as they crossed the threshold instead of announcing their presence before seeking entry. Richards appealed the decision to the Wisconsin Supreme Court and that court affirmed.
The Wisconsin Supreme Court did not delve into the events underlying Richards’ arrest in any detail, but accepted the following facts: “[O]n December 31, 1991, police executed a search warrant for the motel room of the defendant seeking evidence of the felonious crime of Possession with Intent to Deliver a Controlled Substance in violation of Wis. Stat. § 161.41(1m) (1991-92). They did not knock and announce prior to their entry. Drugs were seized.”
II
We recognized in Wilson that the knock-and-announce requirement could give way “under circumstances presenting a threat of physical violence,” or “where police officers have reason to believe that evidence would likely be destroyed if advance notice were given.” It is indisputable that felony drug investigations may frequently involve both of these circumstances. The question we must resolve is whether this fact justifies dispensing with case-by-case evaluation of the manner in which a search was executed.
The Wisconsin court explained its blanket exception as necessitated by the special circumstances of today’s drug culture, and the State asserted at oral argument that the blanket exception was reasonable in “felony drug cases because of the convergence in a violent and dangerous form of commerce of weapons and the destruction of drugs.” But creating exceptions to the knock-and-announce rule based on the “culture” surrounding a general category of criminal behavior presents at least two serious concerns.
First, the exception contains considerable overgeneralization. For example, while drug investigation frequently does pose special risks to officer safety and the preservation of evidence, not every drug investigation will pose these risks to a substantial degree. For example, a search could be conducted at a time when the only individuals present in a residence have no connection with the drug activity and thus will be unlikely to threaten officers or destroy evidence. Or the police could know that the drugs being searched for were of a type or in a location that made them impossible to destroy quickly. In those situations, the asserted governmental interests in preserving evidence and maintaining safety may not outweigh the individual privacy interests intruded upon by a no-knock entry. Wisconsin’s blanket rule impermissibly insulates these cases from judicial review.
A second difficulty with permitting a criminal-category exception to the knock-and-announce requirement is that the reasons for creating an exception in one category can, relatively easily, be applied to others. Armed bank robbers, for example, are, by definition, likely to have weapons, and the fruits of their crime may be destroyed without too much difficulty. If a per se exception were allowed for each category of criminal investigation that included a considerable—albeit hypothetical—risk of danger to officers or destruction of evidence, the knock-and-announce element of the Fourth Amendment’s reasonableness requirement would be meaningless.
Thus, the fact that felony drug investigations may frequently present circumstances warranting a no-knock entry cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case. Instead, in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement.
In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard—as opposed to a probable-cause requirement—strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. This showing is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged.
III
Although we reject the Wisconsin court’s blanket exception to the knock-and-announce requirement, we conclude that the officers’ no-knock entry into Richards’ motel room did not violate the Fourth Amendment. We agree with the trial court that the circumstances in this case show that the officers had a reasonable suspicion that Richards might destroy evidence if given further opportunity to do so.
The judge who heard testimony at Richards’ suppression hearing concluded that it was reasonable for the officers executing the warrant to believe that Richards knew, after opening the door to his motel room the first time, that the men seeking entry to his room were the police. Once the officers reasonably believed that Richards knew who they were, the court concluded, it was reasonable for them to force entry immediately given the disposable nature of the drugs.
In arguing that the officers’ entry was unreasonable, Richards places great emphasis on the fact that the Magistrate who signed the search warrant for his motel room deleted the portions of the proposed warrant that would have given the officers permission to execute a no-knock entry. But this fact does not alter the reasonableness of the officers’ decision, which must be evaluated as of the time they entered the motel room. At the time the officers obtained the warrant, they did not have evidence sufficient, in the judgment of the Magistrate, to justify a no-knock warrant. Of course, the Magistrate could not have anticipated in every particular the circumstances that would confront the officers when they arrived at Richards’ motel room. These actual circumstances—petitioner’s apparent recognition of the officers combined with the easily disposable nature of the drugs—justified the officers’ ultimate decision to enter without first announcing their presence and authority.
Accordingly, although we reject the blanket exception to the knock-and-announce requirement for felony drug investigations, the judgment of the Wisconsin Supreme Court is affirmed.
Notes, Comments, and Questions
When police “knock and announce,” they are often not obligated to wait very long before forcing entry. In United States v. Banks, 540 U.S. 31 (2003), the Court found that a “15-to-20-second wait before a forcible entry” was justified by the circumstances, and federal courts have approved even shorter wait times.4 Short wait times are especially likely to be deemed reasonable if officers are searching for drugs and hear no response after knocking and announcing. The necessary time officers must wait before “reasonably” breaking a door varies depending on factors such as what police seek, the anticipated dangerousness of persons likely to be on the premises, and how persons react to the arrival of officers.
The 2017 news that federal agents conducted a no-knock raid against Paul Manafort, the former presidential campaign manager for Donald Trump, inspired new interest in the phenomenon of no-knock entries and the breaking of doors by police. Although some commentators suggested that such raids are unusual, it would have been more accurate to say that such raids are unusual for suspects like Paul Manafort. In drug cases, no-knock raids are not unusual at all.5
Students interested in what happens when police execute warrants, particularly without knocking and announcing, may appreciate Radley Balko’s book Rise of the Warrior Cop (2013). Balko observed:
Today in America SWAT teams violently smash into private homes more than one hundred times per day. The vast majority of these raids are to enforce laws against consensual crimes.6 In many cities, police departments have given up the traditional blue uniforms for “battle dress uniforms” modeled after soldier attire. Police departments across the country now sport armored personnel carriers designed for use on a battlefield. … They carry military-grade weapons. Most of this equipment comes from the military itself. Many SWAT teams today are trained by current and former personnel from special forces units.7
Balko notes also that despite the Supreme Court’s guidance concerning no-knock raids—that is, holdings that the Fourth Amendment limits the use of such tactics—“the police officers interviewed for this book unanimously told me that beginning in about the mid-1980s, judges almost never denied their requests for a search warrant” and that “knock-and-announce requests were never a problem.”8
In March 2020, no-knock warrants gained national attention after police in Louisville, Kentucky shot and killed Breonna Taylor, a 26-year-old emergency room technician. Police entered her apartment soon after midnight on March 13, under authority of a no-knock warrant issued by a judge. Taylor’s boyfriend, Kenneth Walker, said later that when police entered, he and Taylor believed they were victims of a burglary and did not know that the persons entering their home were police officers. Officers said later that they did knock and announce. After police entered, Walker shot at the officers, hitting one in the leg. Police fired back, killing Taylor. She was shot at least eight times. The warrant had been issued as part of an investigation into drug sales. No drugs were found in Taylor’s apartment. Taylor’s death was one of several—including the May 2020 killing of George Floyd by police in Minneapolis—that inspired nationwide protests. Louisville officials announced new policies relating to no-knock warrants in the wake of protests. In addition, some have argued that under existing law set forth in Wilson and Richards, the no-knock warrant in Taylor’s case was not lawfully issued.
In our next chapter, we will continue examining how the Court regulates the execution of warrants by police. In particular, we will review how officers may treat persons who happen to be present while officers are searching pursuant to a warrant (including whether such persons may be detained and searched), as well as how mistakes by police in the execution of warrants (such as searching the wrong place) affect the “reasonableness” of searches.
After that, we will spend several chapters studying the circumstances in which the Court has declared that warrants are not required. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.06%3A_Chapter_7_-_Warrants.txt |
Execution of Warrants
The execution of warrants presents several opportunities for disaster, as well as more minor problems. Straightforward risks include efforts by persons present at the search location to disrupt the search, such as by destroying evidence or barring entry. In addition, the possibility that suspects will assault officers cannot be ignored. The Court has attempted to balance concern about these risks with concern for the civil liberties of persons present during a search. Two common recurring questions include: (1) when officers may detain those present at the search location and (2) when officers may search them.
In addition to hazards faced by law enforcement officers, other problems can be created by officers themselves or by the judges who issue warrants. For example, a warrant listing the wrong address can cause officers to search the wrong house. Officers who do not read a warrant carefully can search locations beyond those authorized by a warrant. And rough search methods can cause needless property damage.
We begin with the Court’s rulings about how police may treat persons who are present during the execution of a valid search warrant.
Supreme Court of the United States
Darin L. Muehler v. Iris Mena
Decided March 22, 2005 – 544 U.S. 93
Chief Justice REHNQUIST delivered the opinion of the Court.
Respondent Iris Mena was detained in handcuffs during a search of the premises that she and several others occupied. Petitioners were lead members of a police detachment executing a search warrant of these premises. She sued the officers and the District Court found in her favor. The Court of Appeals affirmed the judgment, holding that the use of handcuffs to detain Mena during the search violated the Fourth Amendment and that the officers’ questioning of Mena about her immigration status during the detention constituted an independent Fourth Amendment violation. We hold that Mena’s detention in handcuffs for the length of the search was consistent with our opinion in Michigan v. Summers, 452 U.S. 692 (1981), and that the officers’ questioning during that detention did not violate her Fourth Amendment rights.
Based on information gleaned from the investigation of a gang-related, driveby shooting, petitioners Muehler and Brill had reason to believe at least one member of a gang—the West Side Locos—lived at 1363 Patricia Avenue. They also suspected that the individual was armed and dangerous, since he had recently been involved in the driveby shooting. As a result, Muehler obtained a search warrant for 1363 Patricia Avenue that authorized a broad search of the house and premises for, among other things, deadly weapons and evidence of gang membership. In light of the high degree of risk involved in searching a house suspected of housing at least one, and perhaps multiple, armed gang members, a Special Weapons and Tactics (SWAT) team was used to secure the residence and grounds before the search.
At 7 a.m. on February 3, 1998, petitioners, along with the SWAT team and other officers, executed the warrant. Mena was asleep in her bed when the SWAT team, clad in helmets and black vests adorned with badges and the word “POLICE,” entered her bedroom and placed her in handcuffs at gunpoint. The SWAT team also handcuffed three other individuals found on the property. The SWAT team then took those individuals and Mena into a converted garage, which contained several beds and some other bedroom furniture. While the search proceeded, one or two officers guarded the four detainees, who were allowed to move around the garage but remained in handcuffs.
Aware that the West Side Locos gang was composed primarily of illegal immigrants, the officers had notified the Immigration and Naturalization Service (INS) that they would be conducting the search, and an INS officer accompanied the officers executing the warrant. During their detention in the garage, an officer asked for each detainee’s name, date of birth, place of birth, and immigration status. The INS officer later asked the detainees for their immigration documentation. Mena’s status as a permanent resident was confirmed by her papers.1
The search of the premises yielded a .22 caliber handgun with .22 caliber ammunition, a box of .25 caliber ammunition, several baseball bats with gang writing, various additional gang paraphernalia, and a bag of marijuana. Before the officers left the area, Mena was released.
In her § 1983 suit against the officers she alleged that she was detained “for an unreasonable time and in an unreasonable manner” in violation of the Fourth Amendment. In addition, she claimed that the warrant and its execution were overbroad, that the officers failed to comply with the “knock and announce” rule, and that the officers had needlessly destroyed property during the search. The officers moved for summary judgment, asserting that they were entitled to qualified immunity, but the District Court denied their motion. The Court of Appeals affirmed that denial, except for Mena’s claim that the warrant was overbroad; on this claim the Court of Appeals held that the officers were entitled to qualified immunity. After a trial, a jury, pursuant to a special verdict form, found that Officers Muehler and Brill violated Mena’s Fourth Amendment right to be free from unreasonable seizures by detaining her both with force greater than that which was reasonable and for a longer period than that which was reasonable. The jury awarded Mena \$10,000 in actual damages and \$20,000 in punitive damages against each petitioner for a total of \$60,000.
The Court of Appeals affirmed the judgment on two grounds. Reviewing the denial of qualified immunity de novo, it first held that the officers’ detention of Mena violated the Fourth Amendment because it was objectively unreasonable to confine her in the converted garage and keep her in handcuffs during the search. In the Court of Appeals’ view, the officers should have released Mena as soon as it became clear that she posed no immediate threat. The court additionally held that the questioning of Mena about her immigration status constituted an independent Fourth Amendment violation. The Court of Appeals went on to hold that those rights were clearly established at the time of Mena’s questioning, and thus the officers were not entitled to qualified immunity. We granted certiorari and now vacate and remand.
In Michigan v. Summers, 452 U.S. 692 (1981), we held that officers executing a search warrant for contraband have the authority “to detain the occupants of the premises while a proper search is conducted.” Such detentions are appropriate, we explained, because the character of the additional intrusion caused by detention is slight and because the justifications for detention are substantial. We made clear that the detention of an occupant is “surely less intrusive than the search itself,” and the presence of a warrant assures that a neutral magistrate has determined that probable cause exists to search the home. Against this incremental intrusion, we posited three legitimate law enforcement interests that provide substantial justification for detaining an occupant: “preventing flight in the event that incriminating evidence is found”; “minimizing the risk of harm to the officers”; and facilitating “the orderly completion of the search,” as detainees’ “self-interest may induce them to open locked doors or locked containers to avoid the use of force.”
Mena’s detention was, under Summers, plainly permissible. An officer’s authority to detain incident to a search is categorical; it does not depend on the “quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure.” Thus, Mena’s detention for the duration of the search was reasonable under Summers because a warrant existed to search 1363 Patricia Avenue and she was an occupant of that address at the time of the search.
Inherent in Summers’ authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention. Indeed, Summers itself stressed that the risk of harm to officers and occupants is minimized “if the officers routinely exercise unquestioned command of the situation.”
The officers’ use of force in the form of handcuffs to effectuate Mena’s detention in the garage, as well as the detention of the three other occupants, was reasonable because the governmental interests outweigh the marginal intrusion. The imposition of correctly applied handcuffs on Mena, who was already being lawfully detained during a search of the house, was undoubtedly a separate intrusion in addition to detention in the converted garage. The detention was thus more intrusive than that which we upheld in Summers.
But this was no ordinary search. The governmental interests in not only detaining, but using handcuffs, are at their maximum when, as here, a warrant authorizes a search for weapons and a wanted gang member resides on the premises. In such inherently dangerous situations, the use of handcuffs minimizes the risk of harm to both officers and occupants. Though this safety risk inherent in executing a search warrant for weapons was sufficient to justify the use of handcuffs, the need to detain multiple occupants made the use of handcuffs all the more reasonable.
Mena argues that, even if the use of handcuffs to detain her in the garage was reasonable as an initial matter, the duration of the use of handcuffs made the detention unreasonable. The duration of a detention can, of course, affect the balance of interests. However, the 2– to 3–hour detention in handcuffs in this case does not outweigh the government’s continuing safety interests. As we have noted, this case involved the detention of four detainees by two officers during a search of a gang house for dangerous weapons. We conclude that the detention of Mena in handcuffs during the search was reasonable.
The Court of Appeals also determined that the officers violated Mena’s Fourth Amendment rights by questioning her about her immigration status during the detention. This holding, it appears, was premised on the assumption that the officers were required to have independent reasonable suspicion in order to question Mena concerning her immigration status because the questioning constituted a discrete Fourth Amendment event. But the premise is faulty. We have “held repeatedly that mere police questioning does not constitute a seizure.” “[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search his or her luggage.” As the Court of Appeals did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.
In summary, the officers’ detention of Mena in handcuffs during the execution of the search warrant was reasonable and did not violate the Fourth Amendment. Additionally, the officers’ questioning of Mena did not constitute an independent Fourth Amendment violation.
The judgment of the Court of Appeals is therefore vacated, and the case is remanded for further proceedings consistent with this opinion.
Justice STEVENS, with whom Justice SOUTER, Justice GINSBURG, and Justice BREYER join, concurring in the judgment.
In its opinion affirming the judgment, the Court of Appeals made two mistakes. First, as the Court explains, it erroneously held that the immigration officers’ questioning of Mena about her immigration status was an independent violation of the Fourth Amendment. Second, instead of merely deciding whether there was sufficient evidence in the record to support the jury’s verdict, the Court of Appeals appears to have ruled as a matter of law that the officers should have released her from the handcuffs sooner than they did. I agree that it is appropriate to remand the case to enable the Court of Appeals to consider whether the evidence supports Mena’s contention that she was held longer than the search actually lasted. In doing so, the Court of Appeals must of course accord appropriate deference to the jury’s reasonable factual findings, while applying the correct legal standard.
In my judgment, however, the Court’s discussion of the amount of force used to detain Mena is analytically unsound. Although the Court correctly purports to apply the “objective reasonableness” test announced in Graham v. Connor, 490 U.S. 386 (1989), it misapplies that test. Given the facts of this case—and the presumption that a reviewing court must draw all reasonable inferences in favor of supporting the verdict—I think it clear that the jury could properly have found that this 5–foot–2–inch young lady posed no threat to the officers at the scene, and that they used excessive force in keeping her in handcuffs for up to three hours. Although Summers authorizes the detention of any individual who is present when a valid search warrant is being executed, that case does not give officers carte blanche to keep individuals who pose no threat in handcuffs throughout a search, no matter how long it may last. On remand, I would therefore instruct the Court of Appeals to consider whether the evidence supports Mena’s contention that the petitioners used excessive force in detaining her when it considers the length of the Summers detention.
As the Court notes, the warrant in this case authorized the police to enter the Mena home to search for a gun belonging to Raymond Romero that may have been used in a gang-related driveby shooting. Romero, a known member of the West Side Locos gang, rented a room from the Mena family. The house, described as a “‘poor house,’” was home to several unrelated individuals who rented from the Menas. Each resident had his or her own bedroom, which could be locked with a padlock on the outside, and each had access to the living room and kitchen. In addition, several individuals lived in trailers in the back yard and also had access to the common spaces in the Mena home.
In addition to Romero, police had reason to believe that at least one other West Side Locos gang member had lived at the residence, although Romero’s brother told police that the individual had returned to Mexico. The officers in charge of the search, petitioners Muehler and Brill, had been at the same residence a few months earlier on an unrelated domestic violence call, but did not see any other individuals they believed to be gang members inside the home on that occasion.
In light of the fact that the police believed that Romero possessed a gun and that there might be other gang members at the residence, petitioner Muehler decided to use a Special Weapons and Tactics (SWAT) team to execute the warrant. As described in the majority opinion, eight members of the SWAT team forcefully entered the home at 7 a.m. In fact, Mena was the only occupant of the house, and she was asleep in her bedroom. The police woke her up at gunpoint, and immediately handcuffed her. At the same time, officers served another search warrant at the home of Romero’s mother, where Romero was known to stay several nights each week. In part because Romero’s mother had previously cooperated with police officers, they did not use a SWAT team to serve that warrant. Romero was found at his mother’s house; after being cited for possession of a small amount of marijuana, he was released.
Meanwhile, after the SWAT team secured the Mena residence and gave the “all clear,” police officers transferred Mena and three other individuals (who had been in trailers in the back yard) to a converted garage. To get to the garage, Mena, who was still in her bedclothes, was forced to walk barefoot through the pouring rain. The officers kept her and the other three individuals in the garage for up to three hours while they searched the home. Although she requested them to remove the handcuffs, they refused to do so. For the duration of the search, two officers guarded Mena and the other three detainees. A .22–caliber handgun, ammunition, and gang-related paraphernalia were found in Romero’s bedroom, and other gang-related paraphernalia was found in the living room. Officers found nothing of significance in Mena’s bedroom.
Police officers’ legitimate concern for their own safety is always a factor that should weigh heavily in balancing the relevant Graham factors. But, as Officer Brill admitted at trial, if that justification were always sufficient, it would authorize the handcuffing of every occupant of the premises for the duration of every Summers detention. Nothing in either the Summers or the Graham opinion provides any support for such a result. Rather, the decision of what force to use must be made on a case-by-case basis. There is evidence in this record that may well support the conclusion that it was unreasonable to handcuff Mena throughout the search. On remand, therefore, I would instruct the Ninth Circuit to consider that evidence, as well as the possibility that Mena was detained after the search was completed, when deciding whether the evidence in the record is sufficient to support the jury’s verdict.
Notes, Comments, and Questions
Although the Court has authorized officers executing a search warrant to detain persons found on the premises, officers do not necessarily have authority to search the persons who are detained. In Ybarra v. Illinois, 444 U.S. 85 (1979), the Court considered a search that police had conducted at a bar pursuant to a warrant. The warrant allowed police to search the bar and the bartender for drugs, and it was based on reports of “tinfoil packets” possessed by the bartender and stored behind the bar.
When officers arrived at the bar, they told patrons to prepare to be searched for weapons, and officers then patted down the patrons. During one pat down, an officer felt a cigarette pack that seemed to have objects in it. The officer later removed the package from the suspect’s pocket and opened it, finding tinfoil packets containing heroin.
The suspect, charged with possession of the heroin, moved to suppress the evidence as the fruit of an illegal search. The Supreme Court agreed, holding that officers lacked probable cause to believe that any particular customer possessed drugs. “It is true that the police possessed a warrant based on probable cause to search the tavern in which Ybarra happened to be at the time the warrant was executed. But, a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Id. at 91. (The Court also rejected an argument that the initial pat down was a lawful “stop and frisk” authorized by the Court’s decision in Terry v. Ohio, 392 U.S. 1 (1968), a topic to which we will return.) See also United States v. Di Re, 332 U.S. 581 (1948) (holding that even if the search of a certain car was lawful, that did not justify the ensuing search of its occupant).
A magazine aimed at a police officer readership stated the Court’s holding clearly and succinctly in a 2016 article called “Serving the Search Warrant.”2 One heading reads: “Occupants Can be Detained.” The next heading is: “Occupants Cannot be Searched.” The article advises officers, “To justify searching detainees who are not authorized to be searched by the warrant, try to develop grounds for warrantless search, such as consent or probationary/parole search terms, where available.” We will examine these police tactics later in the book.
If mere presence during the execution of a search warrant does not justify the search of a person, it follows that mere presence surely does not justify arresting everyone present. To reinforce this message, the Legal Bureau of the New York Police Department issued a bulletin in 2013 to this effect.3 In response to the question, “May a police officer arrest all persons found in a location during the execution of a search warrant?,” the bulletin answered, “No. An individual’s mere presence in a search location does not establish probable cause to arrest.”
Note that while police may detain persons present at the location to be searched, they may not detain persons who happened to be at the location earlier but have already left before police arrive to execute the warrant. In Bailey v. United States, 568 U.S. 186 (2013), the Court held that the rule of Michigan v. Summers, 452 U.S. 692 (1981) applies only to those in “the immediate vicinity of the premises to be searched.” The Court explained, “Because detention is justified by the interests in executing a safe and efficient search, the decision to detain must be acted upon at the scene of the search and not at a later time in a more remote place.” In Bailey, officers had followed two men 0.7 miles after seeing them leave the building officers had been about to search. The Court found the detention unreasonable. In a dissent, Justice Breyer complained that “immediate vicinity” was not defined by the majority.
In the next two cases, we examine what happens when police search the wrong location when executing a warrant. In one case, a building turned out to have more apartments than officers realized when obtaining the warrant, causing officers to search the wrong person’s home. In the other, officers entered a house looking for suspects who had moved out months earlier, causing an unpleasant surprise to the new residents.
Supreme Court of the United States
Maryland v. Harold Garrison
Decided Feb. 24, 1987 – 480 U.S. 79
Justice STEVENS delivered the opinion of the Court.
Baltimore police officers obtained and executed a warrant to search the person of Lawrence McWebb and “the premises known as 2036 Park Avenue third floor apartment.” When the police applied for the warrant and when they conducted the search pursuant to the warrant, they reasonably believed that there was only one apartment on the premises described in the warrant. In fact, the third floor was divided into two apartments, one occupied by McWebb and one by respondent Garrison. Before the officers executing the warrant became aware that they were in a separate apartment occupied by respondent, they had discovered the contraband that provided the basis for respondent’s conviction for violating Maryland’s Controlled Substances Act. The question presented is whether the seizure of that contraband was prohibited by the Fourth Amendment.
The trial court denied respondent’s motion to suppress the evidence seized from his apartment, and the Maryland Court of Special Appeals affirmed. The Court of Appeals of Maryland reversed and remanded with instructions to remand the case for a new trial.
There is no question that the warrant was valid and was supported by probable cause. The trial court found, and the two appellate courts did not dispute, that after making a reasonable investigation, including a verification of information obtained from a reliable informant, an exterior examination of the three-story building at 2036 Park Avenue, and an inquiry of the utility company, the officer who obtained the warrant reasonably concluded that there was only one apartment on the third floor and that it was occupied by McWebb. When six Baltimore police officers executed the warrant, they fortuitously encountered McWebb in front of the building and used his key to gain admittance to the first-floor hallway and to the locked door at the top of the stairs to the third floor. As they entered the vestibule on the third floor, they encountered respondent, who was standing in the hallway area. The police could see into the interior of both McWebb’s apartment to the left and respondent’s to the right, for the doors to both were open. Only after respondent’s apartment had been entered and heroin, cash, and drug paraphernalia had been found did any of the officers realize that the third floor contained two apartments. As soon as they became aware of that fact, the search was discontinued. All of the officers reasonably believed that they were searching McWebb’s apartment. No further search of respondent’s apartment was made.
The matter on which there is a difference of opinion concerns the proper interpretation of the warrant. A literal reading of its plain language, as well as the language used in the application for the warrant, indicates that it was intended to authorize a search of the entire third floor. This is the construction adopted by the intermediate appellate court and it also appears to be the construction adopted by the trial judge. One sentence in the trial judge’s oral opinion, however, lends support to the construction adopted by the Court of Appeals, namely, that the warrant authorized a search of McWebb’s apartment only. Under that interpretation, the Court of Appeals concluded that the warrant did not authorize the search of respondent’s apartment and the police had no justification for making a warrantless entry into his premises.
Because the result that the Court of Appeals reached did not appear to be required by the Fourth Amendment, we granted certiorari. We reverse.
In our view, the case presents two separate constitutional issues, one concerning the validity of the warrant and the other concerning the reasonableness of the manner in which it was executed.
I
The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one “particularly describing the place to be searched and the persons or things to be seized.” The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. Thus, the scope of a lawful search is “defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase.”
In this case there is no claim that the “persons or things to be seized” were inadequately described or that there was no probable cause to believe that those things might be found in “the place to be searched” as it was described in the warrant. With the benefit of hindsight, however, we now know that the description of that place was broader than appropriate because it was based on the mistaken belief that there was only one apartment on the third floor of the building at 2036 Park Avenue. The question is whether that factual mistake invalidated a warrant that undoubtedly would have been valid if it had reflected a completely accurate understanding of the building’s floor plan.
Plainly, if the officers had known, or even if they should have known, that there were two separate dwelling units on the third floor of 2036 Park Avenue, they would have been obligated to exclude respondent’s apartment from the scope of the requested warrant. But we must judge the constitutionality of their conduct in light of the information available to them at the time they acted. Those items of evidence that emerge after the warrant is issued have no bearing on whether or not a warrant was validly issued. Just as the discovery of contraband cannot validate a warrant invalid when issued, so is it equally clear that the discovery of facts demonstrating that a valid warrant was unnecessarily broad does not retroactively invalidate the warrant. The validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate. On the basis of that information, we agree with the conclusion of all three Maryland courts that the warrant, insofar as it authorized a search that turned out to be ambiguous in scope, was valid when it issued.
II
The question whether the execution of the warrant violated respondent’s constitutional right to be secure in his home is somewhat less clear. We have no difficulty concluding that the officers’ entry into the third-floor common area was legal; they carried a warrant for those premises, and they were accompanied by McWebb, who provided the key that they used to open the door giving access to the third-floor common area. If the officers had known, or should have known, that the third floor contained two apartments before they entered the living quarters on the third floor, and thus had been aware of the error in the warrant, they would have been obligated to limit their search to McWebb’s apartment. Moreover, as the officers recognized, they were required to discontinue the search of respondent’s apartment as soon as they discovered that there were two separate units on the third floor and therefore were put on notice of the risk that they might be in a unit erroneously included within the terms of the warrant. The officers’ conduct and the limits of the search were based on the information available as the search proceeded. While the purposes justifying a police search strictly limit the permissible extent of the search, the Court has also recognized the need to allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants.
[T]he validity of the search of respondent’s apartment pursuant to a warrant authorizing the search of the entire third floor depends on whether the officers’ failure to realize the overbreadth of the warrant was objectively understandable and reasonable. Here it unquestionably was. The objective facts available to the officers at the time suggested no distinction between McWebb’s apartment and the third-floor premises.
For that reason, the officers properly responded to the command contained in a valid warrant even if the warrant is interpreted as authorizing a search limited to McWebb’s apartment rather than the entire third floor. Prior to the officers’ discovery of the factual mistake, they perceived McWebb’s apartment and the third-floor premises as one and the same; therefore their execution of the warrant reasonably included the entire third floor. Under either interpretation of the warrant, the officers’ conduct was consistent with a reasonable effort to ascertain and identify the place intended to be searched within the meaning of the Fourth Amendment.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Justice BLACKMUN, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.
Under this Court’s precedents, the search of respondent Garrison’s apartment violated the Fourth Amendment. While executing a warrant specifically limited to McWebb’s residence, the officers expanded their search to include respondent’s adjacent apartment, an expansion made without a warrant and in the absence of exigent circumstances. In my view, Maryland’s highest court correctly concluded that the trial judge should have granted respondent’s motion to suppress the evidence seized as a result of this warrantless search of his apartment. Moreover, even if I were to accept the majority’s analysis of this case as one involving a mistake on the part of the police officers, I would find that the officers’ error, either in obtaining or in executing the warrant, was not reasonable under the circumstances.
I
The Fourth Amendment states that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The particularity-of-description requirement is satisfied where “the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.” In applying this requirement to searches aimed at residences within multiunit buildings, such as the search in the present case, courts have declared invalid those warrants that fail to describe the targeted unit with enough specificity to prevent a search of all the units.
Applying the above principle[] to this case, I conclude that the search of respondent’s apartment was improper. The words of the warrant were plain and distinctive: the warrant directed the officers to seize marijuana and drug paraphernalia on the person of McWebb and in McWebb’s apartment, i.e., “on the premises known as 2036 Park Avenue third floor apartment.” As the Court of Appeals observed, this warrant specifically authorized a search only of McWebb’s—not respondent’s—residence. In its interpretation of the warrant, the majority suggests that the language of this document, as well as that in the supporting affidavit, permitted a search of the entire third floor. It escapes me why the language in question, “third floor apartment,” when used with reference to a single unit in a multiple-occupancy building and in the context of one person’s residence, plainly has the meaning the majority discerns, rather than its apparent and, indeed, obvious signification—one apartment located on the third floor. Accordingly, if, as appears to be the case, the warrant was limited in its description to the third-floor apartment of McWebb, then the search of an additional apartment—respondent’s—was warrantless and is presumed unreasonable “in the absence of some one of a number of well defined ‘exigent circumstances.’” Because the State has not advanced any such exception to the warrant requirement, the evidence obtained as a result of this search should have been excluded.
II
Because the Court cannot justify the officers’ search under the “exceptional circumstances” rubric, it analyzes the police conduct here in terms of “mistake.” According to the Court, hindsight makes it clear that the officers were mistaken, first, in not describing McWebb’s apartment with greater specificity in the warrant, and second, in including respondent’s apartment within the scope of the execution of the warrant. The Court’s inquiry focuses on what the officers knew or should have known at these particular junctures. The Court reasons that if, in light of the officers’ actual or imputed knowledge, their behavior was reasonable, then their mistakes did not constitute an infringement on respondent’s Fourth Amendment rights. In this case, the Court finds no Fourth Amendment violation because the officers could not reasonably have drawn the warrant with any greater particularity and because, until the moment when the officers realized that they were in fact searching two different apartments, they had no reason to believe that McWebb’s residence did not cover the entire third floor.
Even if one accepts the majority’s view that there is no Fourth Amendment violation where the officers’ mistake is reasonable, it is questionable whether that standard was met in this case. To repeat Justice Harlan’s observation, although the proper question in Fourth Amendment analysis is “what protection it affords to … people, … that question requires reference to a ‘place.’” The “place” at issue here is a small multiple-occupancy building. Such forms of habitation are now common in this country, particularly in neighborhoods with changing populations and of declining affluence. Accordingly, any analysis of the “reasonableness” of the officers’ behavior here must be done with this context in mind.
The efforts of Detective Marcus, the officer who procured the search warrant, do not meet a standard of reasonableness, particularly considering that the detective knew the search concerned a unit in a multiple-occupancy building. Upon learning from his informant that McWebb was selling marijuana in his third-floor apartment, Marcus inspected the outside of the building. He did not approach it, however, to gather information about the configuration of the apartments. Had he done so, he would have discovered, as did another officer on the day of executing the warrant, that there were seven separate mailboxes and bells on the porch outside the main entrance to the house. Although there is some dispute over whether names were affixed near these boxes and bells, their existence alone puts a reasonable observer on notice that the three-story structure (with, possibly, a basement) had seven individual units. The detective, therefore, should have been aware that further investigation was necessary to eliminate the possibility of more than one unit’s being located on the third floor. Moreover, when Detective Marcus’ informant told him that he had purchased drugs in McWebb’s apartment, it appears that the detective never thought to ask the informant whether McWebb’s apartment was the only one on the third floor. These efforts, which would have placed a slight burden upon the detective, are necessary in order to render reasonable the officer’s behavior in seeking the warrant.
Moreover, even if one believed that Marcus’ efforts in providing information for issuance of the warrant were reasonable, I doubt whether the officers’ execution of the warrant could meet such a standard. In the Court’s view, the “objective facts” did not put the officers on notice that they were dealing with two separate apartments on the third floor until the moment, considerably into the search after they had rummaged through a dresser and a closet in respondent’s apartment and had discovered evidence incriminating him, when they realized their “mistake.” The Court appears to base its conclusion that the officers’ error here was reasonable on the fact that neither McWebb nor respondent ever told the officers during the search that they lived in separate apartments.
In my view, however, the “objective facts” should have made the officers aware that there were two different apartments on the third floor well before they discovered the incriminating evidence in respondent’s apartment. Before McWebb happened to drive up while the search party was preparing to execute the warrant, one of the officers, Detective Shea, somewhat disguised as a construction worker, was already on the porch of the row house and was seeking to gain access to the locked first-floor door that permitted entrance into the building. From this vantage point he had time to observe the seven mailboxes and bells; indeed, he rang all seven bells, apparently in an effort to summon some resident to open the front door to the search party. A reasonable officer in Detective Shea’s position, already aware that this was a multiunit building and now armed with further knowledge of the number of units in the structure, would have conducted at that time more investigation to specify the exact location of McWebb’s apartment before proceeding further. For example, he might have questioned another resident of the building.
It is surprising, moreover, that the Court places so much emphasis on the failure of McWebb to volunteer information about the exact location of his apartment. When McWebb drove up, one of the police vehicles blocked his car and the officers surrounded him and his passenger as they got out. Although the officers had no arrest warrant for McWebb, but only a search warrant for his person and apartment, and although they testified that they did not arrest him at that time, it was clear that neither McWebb nor his passenger was free to leave. In such circumstances, which strongly suggest that McWebb was already in custody, it was proper for the officers to administer to him [Miranda] warnings. It would have been reasonable for the officers, aware of the problem, from Detective Shea’s discovery, in the specificity of their warrant, to ask McWebb whether his apartment was the only one on the third floor. As it is, the officers made several requests of and questioned McWebb, without giving him Miranda warnings, and yet failed to ask him the question, obvious in the circumstances, concerning the exact location of his apartment.
Moreover, a reasonable officer would have realized the mistake in the warrant during the moments following the officers’ entrance to the third floor. The officers gained access to the vestibule separating McWebb’s and respondent’s apartments through a locked door for which McWebb supplied the key. There, in the open doorway to his apartment, they encountered respondent. Once again, the officers were curiously silent. The informant had not led the officers to believe that anyone other than McWebb lived in the third-floor apartment; the search party had McWebb, the person targeted by the search warrant, in custody when it gained access to the vestibule; yet when they met respondent on the third floor, they simply asked him who he was but never where he lived. Had they done so, it is likely that they would have discovered the mistake in the warrant before they began their search.
Finally and most importantly, even if the officers had learned nothing from respondent, they should have realized the error in the warrant from their initial security sweep. Once on the third floor, the officers first fanned out through the rooms to conduct a preliminary check for other occupants who might pose a danger to them. As the map of the third floor demonstrates, the two apartments were almost a mirror image of each other—each had a bathroom, a kitchen, a living room, and a bedroom. Given the somewhat symmetrical layout of the apartments, it is difficult to imagine that, in the initial security sweep, a reasonable officer would not have discerned that two apartments were on the third floor, realized his mistake, and then confined the ensuing search to McWebb’s residence.
Accordingly, even if a reasonable error on the part of police officers prevents a Fourth Amendment violation, the mistakes here, both with respect to obtaining and executing the warrant, are not reasonable and could easily have been avoided.
I respectfully dissent.
* * *
In the next case, the Supreme Court forcefully rejects the reasoning of a decision by the U.S. Court of Appeals for the Ninth Circuit. The Court not only decided the case per curiam—that is, in an unsigned opinion—but also did so immediately upon the grant of certiorari, without allowing briefing or oral argument on the merits.
Supreme Court of the United States
Los Angeles County, California v. Max Rettele
Decided May 21, 2007 – 550 U.S. 609.
PER CURIAM.
Deputies of the Los Angeles County Sheriff’s Department obtained a valid warrant to search a house, but they were unaware that the suspects being sought had moved out three months earlier. When the deputies searched the house, they found in a bedroom two residents who were of a different race than the suspects. The deputies ordered these innocent residents, who had been sleeping unclothed, out of bed. The deputies required them to stand for a few minutes before allowing them to dress.
The residents brought suit, naming the deputies and other parties and accusing them of violating the Fourth Amendment right to be free from unreasonable searches and seizures. The District Court granted summary judgment to all named defendants. The Court of Appeals for the Ninth Circuit reversed, concluding both that the deputies violated the Fourth Amendment and that they were not entitled to qualified immunity because a reasonable deputy would have stopped the search upon discovering that respondents were of a different race than the suspects and because a reasonable deputy would not have ordered respondents from their bed. We grant the petition for certiorari and reverse the judgment of the Court of Appeals by this summary disposition.
I
From September to December 2001, Los Angeles County Sheriff’s Department Deputy Dennis Watters investigated a fraud and identity-theft crime ring. There were four suspects of the investigation. One had registered a 9-millimeter Glock handgun. The four suspects were known to be African-Americans.
On December 11, Watters obtained a search warrant for two houses in Lancaster, California, where he believed he could find the suspects. The warrant authorized him to search the homes and three of the suspects for documents and computer files. In support of the search warrant an affidavit cited various sources showing the suspects resided at respondents’ home. The sources included Department of Motor Vehicles reports, mailing address listings, an outstanding warrant, and an Internet telephone directory. In this Court respondents do not dispute the validity of the warrant or the means by which it was obtained.
What Watters did not know was that one of the houses (the first to be searched) had been sold in September to a Max Rettele. He had purchased the home and moved into it three months earlier with his girlfriend Judy Sadler and Sadler’s 17-year-old son Chase Hall. All three, respondents here, are Caucasians.
On the morning of December 19, Watters briefed six other deputies in preparation for the search of the houses. Watters informed them they would be searching for three African–American suspects, one of whom owned a registered handgun. The possibility a suspect would be armed caused the deputies concern for their own safety. Watters had not obtained special permission for a night search, so he could not execute the warrant until 7 a.m. Around 7:15 Watters and six other deputies knocked on the door and announced their presence. Chase Hall answered. The deputies entered the house after ordering Hall to lie face down on the ground.
The deputies’ announcement awoke Rettele and Sadler. The deputies entered their bedroom with guns drawn and ordered them to get out of their bed and to show their hands. They protested that they were not wearing clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told him not to move. Sadler also stood up and attempted, without success, to cover herself with a sheet. Rettele and Sadler were held at gunpoint for one to two minutes before Rettele was allowed to retrieve a robe for Sadler. He was then permitted to dress. Rettele and Sadler left the bedroom within three to four minutes to sit on the couch in the living room.
By that time the deputies realized they had made a mistake. They apologized to Rettele and Sadler, thanked them for not becoming upset, and left within five minutes. They proceeded to the other house the warrant authorized them to search, where they found three suspects. Those suspects were arrested and convicted.
Rettele and Sadler, individually and as guardians ad litem for Hall, filed this § 1983 suit against Los Angeles County, the Los Angeles County Sheriff’s Department, Deputy Watters, and other members of the sheriff’s department. Respondents alleged petitioners violated their Fourth Amendment rights by obtaining a warrant in reckless fashion and conducting an unreasonable search and detention. The District Court held that the warrant was obtained by proper procedures and the search was reasonable. It concluded in the alternative that any Fourth Amendment rights the deputies violated were not clearly established and that, as a result, the deputies were entitled to qualified immunity.
On appeal respondents did not challenge the validity of the warrant; they did argue that the deputies had conducted the search in an unreasonable manner. A divided panel of the Court of Appeals for the Ninth Circuit reversed in an unpublished opinion.
II
Because respondents were of a different race than the suspects the deputies were seeking, the Court of Appeals held that “[a]fter taking one look at [respondents], the deputies should have realized that [respondents] were not the subjects of the search warrant and did not pose a threat to the deputies’ safety.” We need not pause long in rejecting this unsound proposition. When the deputies ordered respondents from their bed, they had no way of knowing whether the African–American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity. The deputies, who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search.
In Michigan v. Summers, 452 U.S. 692 (1981), this Court held that officers executing a search warrant for contraband may “detain the occupants of the premises while a proper search is conducted.” In weighing whether the search in Summers was reasonable the Court first found that “detention represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant.” Against that interest, it balanced “preventing flight in the event that incriminating evidence is found”; “minimizing the risk of harm to the officers”; and facilitating “the orderly completion of the search.”
In executing a search warrant officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search. The test of reasonableness under the Fourth Amendment is an objective one. Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period of time.
The orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the suspects was known to own a firearm, factors which underscore this point. The Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. The reports are replete with accounts of suspects sleeping close to weapons.
The deputies needed a moment to secure the room and ensure that other persons were not close by or did not present a danger. Deputies were not required to turn their backs to allow Rettele and Sadler to retrieve clothing or to cover themselves with the sheets. Rather, “[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.”
This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain motionless and standing for any longer than necessary. We have recognized that “special circumstances, or possibly a prolonged detention,” might render a search unreasonable. There is no accusation that the detention here was prolonged. The deputies left the home less than 15 minutes after arriving. The detention was shorter and less restrictive than the 2– to 3–hour handcuff detention upheld in Mena. And there is no allegation that the deputies prevented Sadler and Rettele from dressing longer than necessary to protect their safety. Sadler was unclothed for no more than two minutes, and Rettele for only slightly more time than that. Sadler testified that once the police were satisfied that no immediate threat was presented, “they wanted us to get dressed and they were pressing us really fast to hurry up and get some clothes on.”
The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the cost. Officers executing search warrants on occasion enter a house when residents are engaged in private activity; and the resulting frustration, embarrassment, and humiliation may be real, as was true here. When officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however, the Fourth Amendment is not violated.
Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
Notes, Comments, and Questions
One issue potentially raised by the facts of Rettele—although not addressed by the Justices—is the question of when a warrant goes “stale.” A warrant based upon probable cause to believe that contraband or suspects will be found in a certain place becomes less reliable over time. To pick an extreme example, if police receive a warrant in 2018 to search a particular house for a suspect, news that the suspect died in 2019 would make it unreasonable for police to execute the warrant in 2021. Actual cases will present closer questions. For example, a warrant to search for drugs recently delivered to the house of a dealer might go stale relatively quickly because the dealer is likely to sell the drugs soon. By contrast, courts have found that collectors of child pornography rarely destroy their material, meaning that warrants to search their computers for illicit images do not go stale. Similarly, a warrant to search an accountant’s office for documents proving a client’s tax fraud would probably remain “fresh” for a long time.
A 2010 raid on a Columbia, Missouri home illustrates the issue. Police had an eight-day-old warrant to search the house of Jonathan Whitworth for drugs. The raid went poorly, and officers shot two dogs, killing one. Officers pointed guns at Whitworth’s wife and her seven-year-old daughter. While some contraband was found, police did not discover evidence of significant drug dealing.4 Whitworth and his family sued the police, alleging among other things that the warrant was stale when executed. Although the court dismissed the lawsuit, Columbia police adopted new policies in response to outcry over the incident.5 (A video of the raid—which is unpleasant to watch—is available online: [YouTube]) | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.07%3A_Chapter_8_-_Execution_of_Warrants.txt |
Warrant Exceptions
The Court has stated repeatedly over the decades that searches and seizures conducted without warrants are presumptively unlawful. The Court has also, however, created several exceptions to the warrant requirement. We will spend the next several chapters exploring these exceptions.
For every warrant exception, students should consider: (1) when the exception applies and (2) what the exception allows police to do. In particular, students should note whether probable cause is necessary for the exception to apply and, if not, what other quantum of evidence is required.
In this chapter, we consider the “plain view exception” and the “automobile exception,” each of which has grown over time. In our first case, the Court considered both exceptions.
The Plain View Exception
The “plain view” exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be.1
Supreme Court of the United States
Edward H. Coolidge, Jr. v. New Hampshire
Decided June 21, 1971 – 403 U.S. 443
Mr. Justice STEWART delivered the opinion of the Court.2
We are called upon in this case to decide issues under the Fourth and Fourteenth Amendments arising in the context of a state criminal trial for the commission of a particularly brutal murder. As in every case, our single duty is to determine the issues presented in accord with the Constitution and the law.
Pamela Mason, a 14-year-old girl, left her home in Manchester, New Hampshire, on the evening of January 13, 1964, during a heavy snowstorm, apparently in response to a man’s telephone call for a babysitter. Eight days later, after a thaw, her body was found by the site of a major north-south highway several miles away. She had been murdered. The event created great alarm in the area, and the police immediately began a massive investigation.
On January 28, having learned from a neighbor that the petitioner, Edward Coolidge, had been away from home on the evening of the girl’s disappearance, the police went to his house to question him. They asked him, among other things, if he owned any guns, and he produced three, two shotguns and a rifle. They also asked whether he would take a lie-detector test concerning his account of his activities on the night of the disappearance. He agreed to do so on the following Sunday, his day off. The police later described his attitude on the occasion of this visit as fully “cooperative.” His wife was in the house throughout the interview.
On the following Sunday, a policeman called Coolidge early in the morning and asked him to come down to the police station for the trip to Concord, New Hampshire, where the lie-detector test was to be administered. That evening, two plainclothes policemen arrived at the Coolidge house, where Mrs. Coolidge was waiting with her mother-in-law for her husband’s return. These two policemen were not the two who had visited the house earlier in the week, and they apparently did not know that Coolidge had displayed three guns for inspection during the earlier visit. The plainclothesmen told Mrs. Coolidge that her husband was in “serious trouble” and probably would not be home that night. They asked Coolidge’s mother to leave, and proceeded to question Mrs. Coolidge. During the course of the interview they obtained from her four guns belonging to Coolidge, and some clothes that Mrs. Coolidge thought her husband might have been wearing on the evening of Pamela Mason’s disappearance.
Coolidge was held in jail on an unrelated charge that night, but he was released the next day. During the ensuing two and a half weeks, the State accumulated a quantity of evidence to support the theory that it was he who had killed Pamela Mason. On February 19, the results of the investigation were presented at a meeting between the police officers working on the case and the State Attorney General, who had personally taken charge of all police activities relating to the murder, and was later to serve as chief prosecutor at the trial. At this meeting, it was decided that there was enough evidence to justify the arrest of Coolidge on the murder charge and a search of his house and two cars. At the conclusion of the meeting, the Manchester police chief made formal application, under oath, for the arrest and search warrants. The complaint supporting the warrant for a search of Coolidge’s Pontiac automobile, the only warrant that concerns us here, stated that the affiant “has probable cause to suspect and believe, and does suspect and believe, and herewith offers satisfactory evidence, that there are certain objects and things used in the Commission of said offense, now kept, and concealed in or upon a certain vehicle, to wit: 1951 Pontiac two-door sedan ….” The warrants were then signed and issued by the Attorney General himself, acting as a justice of the peace. Under New Hampshire law in force at that time, all justices of the peace were authorized to issue search warrants.
The police arrested Coolidge in his house on the day the warrant issued. Mrs. Coolidge asked whether she might remain in the house with her small child, but was told that she must stay elsewhere, apparently in part because the police believed that she would be harassed by reporters if she were accessible to them. When she asked whether she might take her car, she was told that both cars had been “impounded,” and that the police would provide transportation for her. Some time later, the police called a towing company, and about two and a half hours after Coolidge had been taken into custody the cars were towed to the police station. It appears that at the time of the arrest the cars were parked in the Coolidge driveway, and that although dark had fallen they were plainly visible both from the street and from inside the house where Coolidge was actually arrested. The 1951 Pontiac was searched and vacuumed on February 21, two days after it was seized, again a year later, in January 1965, and a third time in April 1965.
At Coolidge’s subsequent jury trial on the charge of murder, vacuum sweepings, including particles of gun powder, taken from the Pontiac were introduced in evidence against him, as part of an attempt by the State to show by microscopic analysis that it was highly probable that Pamela Mason had been in Coolidge’s car. Also introduced in evidence was one of the guns taken by the police on their Sunday evening visit to the Coolidge house—a 22-caliber Mossberg rifle, which the prosecution claimed was the murder weapon. Conflicting ballistics testimony was offered on the question whether the bullets found in Pamela Mason’s body had been fired from this rifle. Finally, the prosecution introduced vacuum sweepings of the clothes taken from the Coolidge house that same Sunday evening, and attempted to show through microscopic analysis that there was a high probability that the clothes had been in contact with Pamela Mason’s body. Pretrial motions to suppress all this evidence were referred by the trial judge to the New Hampshire Supreme Court, which ruled the evidence admissible. The jury found Coolidge guilty and he was sentenced to life imprisonment. The New Hampshire Supreme Court affirmed the judgment of conviction, and we granted certiorari to consider the constitutional questions raised by the admission of this evidence against Coolidge at his trial.
I
The petitioner’s first claim is that the warrant authorizing the seizure and subsequent search of his 1951 Pontiac automobile was invalid because not issued by a “neutral and detached magistrate.” Since we agree with the petitioner that the warrant was invalid for this reason, we need not consider his further argument that the allegations under oath supporting the issuance of the warrant were so conclusory as to violate relevant constitutional standards.
The classic statement of the policy underlying the warrant requirement of the Fourth Amendment is that of Mr. Justice Jackson, writing for the Court:
“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers…. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.”
We find no escape from the conclusion that the seizure and search of the Pontiac automobile cannot constitutionally rest upon the warrant issued by the state official who was the chief investigator and prosecutor in this case. Since he was not the neutral and detached magistrate required by the Constitution, the search stands on no firmer ground than if there had been no warrant at all. If the seizure and search are to be justified, they must, therefore, be justified on some other theory.
II
[T]he most basic constitutional rule in this area is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions.” The exceptions are “jealously and carefully drawn,” and there must be “a showing by those who seek exemption … that the exigencies of the situation made that course imperative.” “[T]he burden is on those seeking the exemption to show the need for it.” In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or “extravagant” to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won—by legal and constitutional means in England, and by revolution on this continent—a right of personal security against arbitrary intrusions by official power. If times have changed, reducing everyman’s scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important.
B
[The majority rejected the state’s claim that the automobile exception justified the search. Because the Court’s analysis of the automobile exception is both confusing and at odds with current law, it is not included here at length. Certain language, however, is well known and illustrates the Court’s early thinking on the exception. For example, citing precedent, the Court stated:
“‘[E]xigent circumstances’ justify the warrantless search of ‘an automobile stopped on the highway,’ where there is probable cause, because the car is ‘movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.’ ‘[T]he opportunity to search is fleeting ….”
Failing to find the necessary circumstances in this case, the Court wrote, “The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.”
Although the Court separated the concept of “exigent circumstances” from the automobile exception in subsequent cases, it continues to justify the automobile exception’s existence with references to the easy mobility of vehicles.
The dissent of Justice Black, which disputed the Court’s automobile exception analysis, has been omitted.]
C
The State’s [] theory in support of the warrantless seizure and search of the Pontiac car is that the car itself was an “instrumentality of the crime,” and as such might be seized by the police on Coolidge’s property because it was in plain view. [F]or the reasons that follow, we hold that the “plain view” exception to the warrant requirement is inapplicable to this case.
It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the ‘plain view’ doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal.
An example of the applicability of the “plain view” doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character. Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus the police may inadvertently come across evidence while in “hot pursuit” of a fleeing suspect. And an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant. Finally, the “plain view” doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object.
What the “plain view” cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification—whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused—and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the “plan view” doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.
The rationale for the “plain view” exception is evident if we keep in mind the two distinct constitutional protections served by the warrant requirement. First, the magistrate’s scrutiny is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity. The second, distinct objective is that those searches deemed necessary should be as limited as possible. Here, the specific evil is the “general warrant” abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings. The warrant accomplishes this second objective by requiring a “particular description” of the things to be seized.
The “plain view” doctrine is not in conflict with the first objective because plain view does not occur until a search is in progress. In each case, this initial intrusion is justified by a warrant or by an exception such as “hot pursuit” or search incident to a lawful arrest, or by an extraneous valid reason for the officer’s presence. And, given the initial intrusion, the seizure of an object in plain view is consistent with the second objective, since it does not convert the search into a general or exploratory one. As against the minor peril to Fourth Amendment protections, there is a major gain in effective law enforcement. Where, once an otherwise lawful search is in progress, the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous—to the evidence or to the police themselves—to require them to ignore it until they have obtained a warrant particularly describing it.
The limits on the doctrine are implicit in the statement of its rationale. The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent “exigent circumstances.” Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.
The second limitation is that the discovery of evidence in plain view must be inadvertent. The rationale of the exception to the warrant requirement, as just stated, is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a “general” one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as “per se unreasonable” in the absence of “exigent circumstances.”
If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of the express constitutional requirement of “Warrants … particularly describing … [the] things to be seized.” The initial intrusion may, of course, be legitimated not by a warrant but by one of the exceptions to the warrant requirement, such as hot pursuit or search incident to lawful arrest. But to extend the scope of such an intrusion to the seizure of objects—not contraband nor stolen nor dangerous in themselves—which the police know in advance they will find in plain view and intend to seize, would fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure.
In the light of what has been said, it is apparent that the “plain view” exception cannot justify the police seizure of the Pontiac car in this case. The police had ample opportunity to obtain a valid warrant; they knew the automobile’s exact description and location well in advance; they intended to seize it when they came upon Coolidge’s property. And this is not a case involving contraband or stolen goods or objects dangerous in themselves.
The seizure was therefore unconstitutional, and so was the subsequent search at the station house. Since evidence obtained in the course of the search was admitted at Coolidge’s trial, the judgment must be reversed and the case remanded to the New Hampshire Supreme Court.
Notes, Comments, and Questions
In Coolidge, the Court stated that the “plain view exception” existed but did not justify the search at issue in the case. In Arizona v. Hicks, 480 U.S. 321 (1987), the Court explained the plain view exception further. As the Hicks Court sets forth, the plain view exception can apply only if an officer conducts a seizure (1) while the officer is somewhere the officer has the lawful right to be (e.g., while on a public sidewalk, or inside a house executing a warrant) and (2) the officer has probable cause to believe that the object is subject to seizure. Objects are subject to seizure if they are contraband or are otherwise evidence of, fruits of, or instrumentalities of a crime. (“Contraband” refers to items that are unlawful to possess, such as illegal drugs.) In Hicks, an officer was lawfully inside a house and spotted an object the officer believed to be stolen. But because the officer lacked probable cause to support his belief upon picking up the item, the officer’s seizure of the object (a stolen stereo) was deemed outside the scope of the exception—that is, it was unlawful.
In Horton v. California, 496 U.S. 128 (1990), the Court expanded the scope of the plain view exception by removing the “inadvertence requirement” set forth in Justice Stewart’s plurality opinion in Coolidge. Although the Horton Court described Coolidge as “binding precedent,” it held that the inadvertence requirement was not “essential” to the Court’s result in Coolidge. As the Horton majority put it, for the exception to apply, “not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.” In addition, “not only must the item be in plain view; its incriminating character must also be ‘immediately apparent.’”
After restating Justice Stewart’s arguments in support of the inadvertence requirement, the Horton Court rejected it as follows:
“We find two flaws in this reasoning. First, even-handed law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer. The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement. If the officer has knowledge approaching certainty that the item will be found, we see no reason why he or she would deliberately omit a particular description of the item to be seized from the application for a search warrant. Specification of the additional item could only permit the officer to expand the scope of the search. On the other hand, if he or she has a valid warrant to search for one item and merely a suspicion concerning the second, whether or not it amounts to probable cause, we fail to see why that suspicion should immunize the second item from seizure if it is found during a lawful search for the first.”
“Second, the suggestion that the inadvertence requirement is necessary to prevent the police from conducting general searches, or from converting specific warrants into general warrants, is not persuasive, because that interest is already served by the requirements that no warrant issue unless it ‘particularly describ[es] the place to be searched and the persons or things to be seized,’” and that a warrantless search be circumscribed by the exigencies which justify its initiation.”
Justice Brennan, joined by Justice Marshall, noted in dissent that “Forty-six States and the District of Columbia and 12 United States Courts of Appeals” had adopted the inadvertence requirement and that there had “been no outcry from law enforcement officials that the inadvertent discovery requirement unduly burdens their efforts.” It is possible, however, that many of the courts cited by the dissent felt bound by Coolidge, regardless of their opinions on the wisdom of the inadvertence requirement.
In the next case, the Court explored the concept of a “plain feel” exception, which was analogized to the plain view exception.
Supreme Court of the United States
Minnesota v. Timothy Dickerson
Decided June 7, 1993 – 508 U.S. 366
Justice WHITE delivered the opinion of the Court.
In this case, we consider whether the Fourth Amendment permits the seizure of contraband detected through a police officer’s sense of touch during a protective patdown search.
I
On the evening of November 9, 1989, two Minneapolis police officers were patrolling an area on the city’s north side in a marked squad car. At about 8:15 p.m., one of the officers observed respondent leaving a 12-unit apartment building on Morgan Avenue North. The officer, having previously responded to complaints of drug sales in the building’s hallways and having executed several search warrants on the premises, considered the building to be a notorious “crack house.” According to testimony credited by the trial court, respondent began walking toward the police but, upon spotting the squad car and making eye contact with one of the officers, abruptly halted and began walking in the opposite direction. His suspicion aroused, this officer watched as respondent turned and entered an alley on the other side of the apartment building. Based upon respondent’s seemingly evasive actions and the fact that he had just left a building known for cocaine traffic, the officers decided to stop respondent and investigate further.
The officers pulled their squad car into the alley and ordered respondent to stop and submit to a patdown search. The search revealed no weapons, but the officer conducting the search did take an interest in a small lump in respondent’s nylon jacket. The officer later testified:
“[A]s I pat-searched the front of his body, I felt a lump, a small lump, in the front pocket. I examined it with my fingers and it slid and it felt to be a lump of crack cocaine in cellophane.” The officer then reached into respondent’s pocket and retrieved a small plastic bag containing one fifth of one gram of crack cocaine. Respondent was arrested and charged in Hennepin County District Court with possession of a controlled substance.
Before trial, respondent moved to suppress the cocaine. The trial court first concluded that the officers were justified under Terry v. Ohio, 392 U.S. 1 (1968), in stopping respondent to investigate whether he might be engaged in criminal activity. The court further found that the officers were justified in frisking respondent to ensure that he was not carrying a weapon. Finally, analogizing to the “plain-view” doctrine, under which officers may make a warrantless seizure of contraband found in plain view during a lawful search for other items, the trial court ruled that the officers’ seizure of the cocaine did not violate the Fourth Amendment.
His suppression motion having failed, respondent proceeded to trial and was found guilty.
On appeal, the Minnesota Court of Appeals reversed. The court agreed with the trial court that the investigative stop and protective patdown search of respondent were lawful under Terry because the officers had a reasonable belief based on specific and articulable facts that respondent was engaged in criminal behavior and that he might be armed and dangerous. The court concluded, however, that the officers had overstepped the bounds allowed by Terry in seizing the cocaine. In doing so, the Court of Appeals “decline[d] to adopt the plain feel exception” to the warrant requirement.
The Minnesota Supreme Court affirmed. Like the Court of Appeals, the State Supreme Court held that both the stop and the frisk of respondent were valid under Terry, but found the seizure of the cocaine to be unconstitutional. The court expressly refused “to extend the plain view doctrine to the sense of touch” on the grounds that “the sense of touch is inherently less immediate and less reliable than the sense of sight” and that “the sense of touch is far more intrusive into the personal privacy that is at the core of the [F]ourth [A]mendment.”
We granted certiorari to resolve a conflict among the state and federal courts over whether contraband detected through the sense of touch during a patdown search may be admitted into evidence. We now affirm.
A
The question presented today is whether police officers may seize nonthreatening contraband detected during a protective patdown search of the sort permitted by Terry. We think the answer is clearly that they may, so long as the officers’ search stays within the bounds marked by Terry.
B
We have already held that police officers, at least under certain circumstances, may seize contraband detected during the lawful execution of a Terry search. The Court [has] held: “If, while conducting a legitimate Terry search of the interior of the automobile, the officer should, as here, discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.”
The Court justified this latter holding by reference to our cases under the “plain-view” doctrine. Under that doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object—i.e., if “its incriminating character [is not] ‘immediately apparent,’”—the plain-view doctrine cannot justify its seizure.
We think that this doctrine has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search. The rationale of the plain-view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no “search” within the meaning of the Fourth Amendment—or at least no search independent of the initial intrusion that gave the officers their vantage point. The warrantless seizure of contraband that presents itself in this manner is deemed justified by the realization that resort to a neutral magistrate under such circumstances would often be impracticable and would do little to promote the objectives of the Fourth Amendment. The same can be said of tactile discoveries of contraband. If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.
III
It remains to apply these principles to the facts of this case. Respondent has not challenged the finding made by the trial court and affirmed by both the Court of Appeals and the State Supreme Court that the police were justified under Terry in stopping him and frisking him for weapons. Thus, the dispositive question before this Court is whether the officer who conducted the search was acting within the lawful bounds marked by Terry at the time he gained probable cause to believe that the lump in respondent’s jacket was contraband. The State District Court did not make precise findings on this point, instead finding simply that the officer, after feeling “a small, hard object wrapped in plastic” in respondent’s pocket, “formed the opinion that the object … was crack … cocaine.” The District Court also noted that the officer made “no claim that he suspected this object to be a weapon,” a finding affirmed on appeal. The Minnesota Supreme Court, after “a close examination of the record,” held that the officer’s own testimony “belies any notion that he ‘immediately’” recognized the lump as crack cocaine. Rather, the court concluded, the officer determined that the lump was contraband only after “squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket”—a pocket which the officer already knew contained no weapon.
Under the State Supreme Court’s interpretation of the record before it, it is clear that the court was correct in holding that the police officer in this case overstepped the bounds of the “strictly circumscribed” search for weapons allowed under Terry. Where, as here, “an officer who is executing a valid search for one item seizes a different item,” this Court rightly “has been sensitive to the danger … that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.” Here, the officer’s continued exploration of respondent’s pocket after having concluded that it contained no weapon was unrelated to “[t]he sole justification of the search [under Terry:] … the protection of the police officer and others nearby.” It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize and that we have condemned in subsequent cases.
For these reasons, the judgment of the Minnesota Supreme Court is [a]ffirmed.
Notes, Comments, and Questions
Students often ask for examples of what would satisfy the “plain feel” standard that the Court found was not met in Dickerson. The simplest examples likely involve guns and other weapons that have fairly obvious shapes, such as a club.
When one of your authors taught bar review, he employed a different example, desiring to use something memorable not involving a weapon. Imagine that the Museum of Natural History has reported stolen a rare starfish from its Asteroidea collection. A few hours later, a police officer notices a person walking in an unusual way near the museum and—based on reasonable suspicion—lawfully stops and frisks the suspect. Upon patting down the suspect’s jacket, the officer feels sharp pains in her hand. When she looks at her hand, she notices five rows of indentations on her palm, each radiating from a central point. It seems likely that the officer could reach into the suspect’s jacket to seize (what she expects to be) the stolen starfish.
The Automobile Exception
In the early 2000s, hip hop mogul Jay-Z released “99 Problems,” a song that concerned—among other things—the law governing when police may search the vehicles of criminal suspects. The song recounts a conversation between the rapper and a police officer who pulled him over in 1994.
Officer: Do you mind if I look around the car a little bit?
Jay-Z: Well, my glove compartment is locked, so is the trunk and the back, and I know my rights so you go’n need a warrant for that
Officer: Aren’t you sharp as a tack, some type of lawyer or something or somebody important or something?”
Jay-Z: Nah I ain’t pass the bar but I know a little bit …3
Professor Caleb Mason published an essay in 2012 that examines “99 Problems” in great detail, focusing particularly on its relevance to criminal procedure.4
If this Essay serves no other purpose, I hope it serves to debunk, for any readers who persist in believing it, the myth that locking your trunk will keep the cops from searching it. Based on the number of my students who arrived at law school believing that if you lock your trunk and glove compartment, the police will need a warrant to search them, I surmise that it’s even more widespread among the lay public. But it’s completely, 100% wrong.
There is no warrant requirement for car searches. The Supreme Court has declared unequivocally that because cars are inherently mobile (and are pervasively regulated, and operated in public spaces), it is reasonable under the Fourth Amendment for the police to search the car—the whole car, and everything in the car, including containers—whenever they have probable cause to believe that the car contains evidence of crime. You don’t have to arrest the person, or impound the vehicle. You just need probable cause to believe that the car contains evidence of crime. So, in any vehicle stop, the officers may search the entire car, without consent, if they develop probable cause to believe that car contains, say, drugs.
All the action, in short, is about probable cause. Warrants never come into the picture. The fact that the trunk and glove compartments are locked is completely irrelevant. Now, Jay-Z may have just altered the lyrics for dramatic effect, but that would be unfortunate insofar as the song is going to reach many more people than any criminal procedure lecture, and everyone should really know the outline of the law in this area. What the line should say is: “You’ll need some p.c. for that.”
In the next case, the Court sets forth what counts as an “automobile” for purposes of the automobile exception.
Supreme Court of the United States
California v. Charles R. Carney
Decided May 13, 1985 – 471 U.S. 386
Chief Justice BURGER delivered the opinion of the Court.
We granted certiorari to decide whether law enforcement agents violated the Fourth Amendment when they conducted a warrantless search, based on probable cause, of a fully mobile “motor home” located in a public place.
I
On May 31, 1979, Drug Enforcement Agency Agent Robert Williams watched respondent, Charles Carney, approach a youth in downtown San Diego. The youth accompanied Carney to a Dodge Mini Motor Home parked in a nearby lot. Carney and the youth closed the window shades in the motor home, including one across the front window. Agent Williams had previously received uncorroborated information that the same motor home was used by another person who was exchanging marihuana for sex. Williams, with assistance from other agents, kept the motor home under surveillance for the entire one and one-quarter hours that Carney and the youth remained inside. When the youth left the motor home, the agents followed and stopped him. The youth told the agents that he had received marijuana in return for allowing Carney sexual contacts.
At the agents’ request, the youth returned to the motor home and knocked on its door; Carney stepped out. The agents identified themselves as law enforcement officers. Without a warrant or consent, one agent entered the motor home and observed marihuana, plastic bags, and a scale of the kind used in weighing drugs on a table. Agent Williams took Carney into custody and took possession of the motor home. A subsequent search of the motor home at the police station revealed additional marihuana in the cupboards and refrigerator.
Respondent was charged with possession of marihuana for sale. At a preliminary hearing, he moved to suppress the evidence discovered in the motor home. The Magistrate denied the motion, upholding the initial search as a justifiable search for other persons, and the subsequent search as a routine inventory search.
Respondent renewed his suppression motion in the Superior Court. The Superior Court also rejected the claim, holding that there was probable cause to arrest respondent, that the search of the motor home was authorized under the automobile exception to the Fourth Amendment’s warrant requirement, and that the motor home itself could be seized without a warrant as an instrumentality of the crime. Respondent then pleaded nolo contendere to the charges against him, and was placed on probation for three years.
Respondent appealed from the order placing him on probation. The California Court of Appeal affirmed, reasoning that the vehicle exception applied to respondent’s motor home.
The California Supreme Court reversed the conviction. The Supreme Court did not disagree with the conclusion of the trial court that the agents had probable cause to arrest respondent and to believe that the vehicle contained evidence of a crime; however, the court held that the search was unreasonable because no warrant was obtained, rejecting the State’s argument that the vehicle exception to the warrant requirement should apply. That court reached its decision by concluding that the mobility of a vehicle “is no longer the prime justification for the automobile exception; rather, ‘the answer lies in the diminished expectation of privacy which surrounds the automobile.’” The California Supreme Court held that the expectations of privacy in a motor home are more like those in a dwelling than in an automobile because the primary function of motor homes is not to provide transportation but to “provide the occupant with living quarters.”
We granted certiorari. We reverse.
II
[The automobile] exception to the [Fourth Amendment] warrant requirement was first set forth by the Court 60 years ago in Carroll v. United States, 267 U.S. 132 (1925). There, the Court recognized that the privacy interests in an automobile are constitutionally protected; however, it held that the ready mobility of the automobile justifies a lesser degree of protection of those interests. The Court rested this exception on a long-recognized distinction between stationary structures and vehicles.
The capacity to be “quickly moved” was clearly the basis of the holding in Carroll, and our cases have consistently recognized ready mobility as one of the principal bases of the automobile exception…. The mobility of automobiles, we have observed, “creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible.”
However, although ready mobility alone was perhaps the original justification for the vehicle exception, our later cases have made clear that ready mobility is not the only basis for the exception. The reasons for the vehicle exception, we have said, are twofold. “Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.”
Even in cases where an automobile was not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justified application of the vehicular exception. In some cases, the configuration of the vehicle contributed to the lower expectations of privacy; for example, we held in Cardwell v. Lewis, 417 U.S. 583 (1974), that because the passenger compartment of a standard automobile is relatively open to plain view, there are lesser expectations of privacy. But even when enclosed “repository” areas have been involved, we have concluded that the lesser expectations of privacy warrant application of the exception. We have applied the exception in the context of a locked car trunk, a sealed package in a car trunk, a closed compartment under the dashboard, the interior of a vehicle’s upholstery, or sealed packages inside a covered pickup truck.
These reduced expectations of privacy derive not from the fact that the area to be searched is in plain view, but from the pervasive regulation of vehicles capable of traveling on the public highways. As we explained in South Dakota v. Opperman [428 U.S. 364 (1976)], an inventory search case:
“Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.”
The public is fully aware that it is accorded less privacy in its automobiles because of this compelling governmental need for regulation. Historically, “individuals always [have] been on notice that movable vessels may be stopped and searched on facts giving rise to probable cause that the vehicle contains contraband, without the protection afforded by a magistrate’s prior evaluation of those facts.” In short, the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.
When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes—temporary or otherwise—the two justifications for the vehicle exception come into play. First, the vehicle is obviously readily mobile by the turn of an ignition key, if not actually moving. Second, there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling. At least in these circumstances, the overriding societal interests in effective law enforcement justify an immediate search before the vehicle and its occupants become unavailable.
While it is true that respondent’s vehicle possessed some, if not many of the attributes of a home, it is equally clear that the vehicle falls clearly within the scope of the exception laid down in Carroll and applied in succeeding cases. Like the automobile in Carroll, respondent’s motor home was readily mobile. Absent the prompt search and seizure, it could readily have been moved beyond the reach of the police. Furthermore, the vehicle was licensed to “operate on public streets; [was] serviced in public places; … and [was] subject to extensive regulation and inspection.” And the vehicle was so situated that an objective observer would conclude that it was being used not as a residence, but as a vehicle.
Respondent urges us to distinguish his vehicle from other vehicles within the exception because it was capable of functioning as a home. In our increasingly mobile society, many vehicles used for transportation can be and are being used not only for transportation but for shelter, i.e., as a “home” or “residence.” To distinguish between respondent’s motor home and an ordinary sedan for purposes of the vehicle exception would require that we apply the exception depending upon the size of the vehicle and the quality of its appointments. Moreover, to fail to apply the exception to vehicles such as a motor home ignores the fact that a motor home lends itself easily to use as an instrument of illicit drug traffic and other illegal activity. We decline today to distinguish between “worthy” and “unworthy” vehicles which are either on the public roads and highways, or situated such that it is reasonable to conclude that the vehicle is not being used as a residence.
Our application of the vehicle exception has never turned on the other uses to which a vehicle might be put. The exception has historically turned on the ready mobility of the vehicle, and on the presence of the vehicle in a setting that objectively indicates that the vehicle is being used for transportation.5 These two requirements for application of the exception ensure that law enforcement officials are not unnecessarily hamstrung in their efforts to detect and prosecute criminal activity, and that the legitimate privacy interests of the public are protected. Applying the vehicle exception in these circumstances allows the essential purposes served by the exception to be fulfilled, while assuring that the exception will acknowledge legitimate privacy interests.
The judgment of the California Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.
The character of “the place to be searched” plays an important role in Fourth Amendment analysis. In this case, police officers searched a Dodge/Midas Mini Motor Home. The California Supreme Court correctly characterized this vehicle as a “hybrid” which combines “the mobility attribute of an automobile … with most of the privacy characteristics of a house.”
The hybrid character of the motor home places it at the crossroads between the privacy interests that generally forbid warrantless invasions of the home and the law enforcement interests that support the exception for warrantless searches of automobiles based on probable cause. By choosing to follow the latter route, the Court errs in three respects: it has entered new territory prematurely, it has accorded priority to an exception rather than to the general rule [of the warrant requirement], and it has abandoned the limits on the exception imposed by prior cases.
If the motor home were parked in the exact middle of the intersection between the general rule and the exception for automobiles, priority should be given to the rule rather than the exception.
The motor home, however, was not parked in the middle of that intersection. Our prior cases teach us that inherent mobility is not a sufficient justification for the fashioning of an exception to the warrant requirement, especially in the face of heightened expectations of privacy in the location searched. Motor homes, by their common use and construction, afford their owners a substantial and legitimate expectation of privacy when they dwell within. When a motor home is parked in a location that is removed from the public highway, I believe that society is prepared to recognize that the expectations of privacy within it are not unlike the expectations one has in a fixed dwelling. As a general rule, such places may only be searched with a warrant based upon probable cause. Warrantless searches of motor homes are only reasonable when the motor home is traveling on the public streets or highways, or when exigent circumstances otherwise require an immediate search without the expenditure of time necessary to obtain a warrant.
In this case, the motor home was parked in an off-the-street lot only a few blocks from the courthouse in downtown San Diego where dozens of magistrates were available to entertain a warrant application. The officers clearly had the element of surprise with them, and with curtains covering the windshield, the motor home offered no indication of any imminent departure. The officers plainly had probable cause to arrest the respondent and search the motor home, and on this record, it is inexplicable why they eschewed the safe harbor of a warrant.
In my opinion, searches of places that regularly accommodate a wide range of private human activity are fundamentally different from searches of automobiles which primarily serve a public transportation function. Although it may not be a castle, a motor home is usually the functional equivalent of a hotel room, a vacation and retirement home, or a hunting and fishing cabin. These places may be as spartan as a humble cottage when compared to the most majestic mansion, but the highest and most legitimate expectations of privacy associated with these temporary abodes should command the respect of this Court.
I respectfully dissent.
Notes, Comments, and Questions
Imagine that Andy, along with his friends Akiva and T-Pain, is on a boat. Police have probable cause to believe that the boat contains evidence of crime. May police search the boat without a warrant?
It turns out that the answer is “yes.” Police can search the boat. As indicated by the Court’s references to “movable vessels” searched during the earliest days of the Republic, the automobile exception is not limited to cars, trucks, and other land-based vehicles. It has been applied to boats and airplanes in the same way as to cars. See United States v. Hill, 855 F.2d 664, 668 (10th Cir. 1988) (houseboats); United States v. Albers, 136 F.3d 670, 673 & n.3 (9th Cir. 1997) (noting that when a houseboat is “permanently moored” and therefore not easily mobile, the exception may not apply); United States v. Montgomery, 620 F.2d 753 (10th Cir. 1980) (airplanes); United States v. Nigro, 727 F.2d 100, 107 (6th Cir. 1984) (same).
The next case allowed the Court to reconsider whether closed containers found inside an automobile are subject to the automobile exception. Students should note that if the answer is yes, then an object not subject to lawful warrantless search (for example, a duffel bag sitting on a sidewalk next to its owner) becomes subject to a lawful warrantless search simply by being moved into a vehicle.
Supreme Court of the United States
California v. Charles Steven Acevedo
Decided May 30, 1991 – 500 U.S. 565
Justice BLACKMUN delivered the opinion of the Court.
This case requires us once again to consider the so-called “automobile exception” to the warrant requirement of the Fourth Amendment and its application to the search of a closed container in the trunk of a car.
I
On October 28, 1987, Officer Coleman of the Santa Ana, Cal., Police Department received a telephone call from a federal drug enforcement agent in Hawaii. The agent informed Coleman that he had seized a package containing marijuana which was to have been delivered to the Federal Express Office in Santa Ana and which was addressed to J.R. Daza at 805 West Stevens Avenue in that city. The agent arranged to send the package to Coleman instead. Coleman then was to take the package to the Federal Express office and arrest the person who arrived to claim it.
Coleman received the package on October 29, verified its contents, and took it to the Senior Operations Manager at the Federal Express office. At about 10:30 a.m. on October 30, a man, who identified himself as Jamie Daza, arrived to claim the package. He accepted it and drove to his apartment on West Stevens. He carried the package into the apartment.
At 11:45 a.m., officers observed Daza leave the apartment and drop the box and paper that had contained the marijuana into a trash bin. Coleman at that point left the scene to get a search warrant. About 12:05 p.m., the officers saw Richard St. George leave the apartment carrying a blue knapsack which appeared to be half full. The officers stopped him as he was driving off, searched the knapsack, and found 1 ½ pounds of marijuana.
At 12:30 p.m., respondent Charles Steven Acevedo arrived. He entered Daza’s apartment, stayed for about 10 minutes, and reappeared carrying a brown paper bag that looked full. The officers noticed that the bag was the size of one of the wrapped marijuana packages sent from Hawaii. Acevedo walked to a silver Honda in the parking lot. He placed the bag in the trunk of the car and started to drive away. Fearing the loss of evidence, officers in a marked police car stopped him. They opened the trunk and the bag, and found marijuana.
Respondent was charged in state court with possession of marijuana for sale. He moved to suppress the marijuana found in the car. The motion was denied. He then pleaded guilty but appealed the denial of the suppression motion.
The California Court of Appeal, Fourth District, concluded that the marijuana found in the paper bag in the car’s trunk should have been suppressed.
The Supreme Court of California denied the State’s petition for review. We granted certiorari to reexamine the law applicable to a closed container in an automobile, a subject that has troubled courts and law enforcement officers since it was first considered.
II
Contemporaneously with the adoption of the Fourth Amendment, the First Congress, and, later, the Second and Fourth Congresses, distinguished between the need for a warrant to search for contraband concealed in “a dwelling house or similar place” and the need for a warrant to search for contraband concealed in a movable vessel. In [1925] this Court established an exception to the warrant requirement for moving vehicles, for it recognized
“a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.”
It therefore held that a warrantless search of an automobile, based upon probable cause to believe that the vehicle contained evidence of crime in the light of an exigency arising out of the likely disappearance of the vehicle, did not contravene the Warrant Clause of the Fourth Amendment.
In United States v. Ross, 456 U.S. 798 (1982), we held that a warrantless search of an automobile under the Carroll doctrine could include a search of a container or package found inside the car when such a search was supported by probable cause. The warrantless search of Ross’ car occurred after an informant told the police that he had seen Ross complete a drug transaction using drugs stored in the trunk of his car. The police stopped the car, searched it, and discovered in the trunk a brown paper bag containing drugs. We decided that the search of Ross’ car was not unreasonable under the Fourth Amendment: “The scope of a warrantless search based on probable cause is no narrower—and no broader—than the scope of a search authorized by a warrant supported by probable cause.” Thus, “[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” In Ross, therefore, we clarified the scope of the Carroll doctrine as properly including a “probing search” of compartments and containers within the automobile so long as the search is supported by probable cause.
In addition to this clarification, Ross distinguished the Carroll doctrine from the separate rule that governed the search of closed containers. The Court had announced this separate rule, unique to luggage and other closed packages, bags, and containers, in United States v. Chadwick, 433 U.S. 1 (1977). In Chadwick, federal narcotics agents had probable cause to believe that a 200-pound double-locked footlocker contained marijuana. The agents tracked the locker as the defendants removed it from a train and carried it through the station to a waiting car. As soon as the defendants lifted the locker into the trunk of the car, the agents arrested them, seized the locker, and searched it. In this Court, the United States did not contend that the locker’s brief contact with the automobile’s trunk sufficed to make the Carroll doctrine applicable. Rather, the United States urged that the search of movable luggage could be considered analogous to the search of an automobile.
The Court rejected this argument because, it reasoned, a person expects more privacy in his luggage and personal effects than he does in his automobile. Moreover, it concluded that as “may often not be the case when automobiles are seized,” secure storage facilities are usually available when the police seize luggage.
In Arkansas v. Sanders, 442 U.S. 753 (1979), the Court extended Chadwick’s rule to apply to a suitcase actually being transported in the trunk of a car. In Sanders, the police had probable cause to believe a suitcase contained marijuana. They watched as the defendant placed the suitcase in the trunk of a taxi and was driven away. The police pursued the taxi for several blocks, stopped it, found the suitcase in the trunk, and searched it. [T]he Sanders majority stressed the heightened privacy expectation in personal luggage and concluded that the presence of luggage in an automobile did not diminish the owner’s expectation of privacy in his personal items.
In Ross, the Court endeavored to distinguish between Carroll, which governed the Ross automobile search, and Chadwick, which governed the Sanders automobile search. It held that the Carroll doctrine covered searches of automobiles when the police had probable cause to search an entire vehicle, but that the Chadwick doctrine governed searches of luggage when the officers had probable cause to search only a container within the vehicle. Thus, in a Ross situation, the police could conduct a reasonable search under the Fourth Amendment without obtaining a warrant, whereas in a Sanders situation, the police had to obtain a warrant before they searched.
III
The facts in this case closely resemble the facts in Ross. In Ross, the police had probable cause to believe that drugs were stored in the trunk of a particular car. Here, the California Court of Appeal concluded that the police had probable cause to believe that respondent was carrying marijuana in a bag in his car’s trunk. Furthermore, for what it is worth, in Ross, as here, the drugs in the trunk were contained in a brown paper bag.
We now must decide the question deferred in Ross: whether the Fourth Amendment requires the police to obtain a warrant to open the sack in a movable vehicle simply because they lack probable cause to search the entire car. We conclude that it does not.
IV
Dissenters in Ross asked why the suitcase in Sanders was “more private, less difficult for police to seize and store, or in any other relevant respect more properly subject to the warrant requirement, than a container that police discover in a probable-cause search of an entire automobile?” We now agree that a container found after a general search of the automobile and a container found in a car after a limited search for the container are equally easy for the police to store and for the suspect to hide or destroy. In fact, we see no principled distinction in terms of either the privacy expectation or the exigent circumstances between the paper bag found by the police in Ross and the paper bag found by the police here. Furthermore, by attempting to distinguish between a container for which the police are specifically searching and a container which they come across in a car, we have provided only minimal protection for privacy and have impeded effective law enforcement.
The line between probable cause to search a vehicle and probable cause to search a package in that vehicle is not always clear, and separate rules that govern the two objects to be searched may enable the police to broaden their power to make warrantless searches and disserve privacy interests. We noted this in Ross in the context of a search of an entire vehicle. Recognizing that under Carroll, the “entire vehicle itself … could be searched without a warrant,” we concluded that “prohibiting police from opening immediately a container in which the object of the search is most likely to be found and instead forcing them first to comb the entire vehicle would actually exacerbate the intrusion on privacy interests.” At the moment when officers stop an automobile, it may be less than clear whether they suspect with a high degree of certainty that the vehicle contains drugs in a bag or simply contains drugs. If the police know that they may open a bag only if they are actually searching the entire car, they may search more extensively than they otherwise would in order to establish the general probable cause required by Ross.
We cannot see the benefit of a rule that requires law enforcement officers to conduct a more intrusive search in order to justify a less intrusive one.
To the extent that the Chadwick-Sanders rule protects privacy, its protection is minimal. Law enforcement officers may seize a container and hold it until they obtain a search warrant. “Since the police, by hypothesis, have probable cause to seize the property, we can assume that a warrant will be routinely forthcoming in the overwhelming majority of cases.”
Finally, the search of a paper bag intrudes far less on individual privacy than does the incursion sanctioned long ago in Carroll. In that case, prohibition agents slashed the upholstery of the automobile. This Court nonetheless found their search to be reasonable under the Fourth Amendment. If destroying the interior of an automobile is not unreasonable, we cannot conclude that looking inside a closed container is. In light of the minimal protection to privacy afforded by the Chadwick-Sanders rule, and our serious doubt whether that rule substantially serves privacy interests, we now hold that the Fourth Amendment does not compel separate treatment for an automobile search that extends only to a container within the vehicle.
V
The Chadwick-Sanders rule not only has failed to protect privacy but also has confused courts and police officers and impeded effective law enforcement.
Although we have recognized firmly that the doctrine of stare decisis serves profoundly important purposes in our legal system, this Court has overruled a prior case on the comparatively rare occasion when it has bred confusion or been a derelict or led to anomalous results. We conclude that it is better to adopt one clear-cut rule to govern automobile searches and eliminate the warrant requirement for closed containers set forth in Sanders.
VI
The interpretation of the Carroll doctrine set forth in Ross now applies to all searches of containers found in an automobile. In other words, the police may search without a warrant if their search is supported by probable cause.
“Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.” We reaffirm that principle. In the case before us, the police had probable cause to believe that the paper bag in the automobile’s trunk contained marijuana. That probable cause now allows a warrantless search of the paper bag. The facts in the record reveal that the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment.
Until today, this Court has drawn a curious line between the search of an automobile that coincidentally turns up a container and the search of a container that coincidentally turns up in an automobile. The protections of the Fourth Amendment must not turn on such coincidences. We therefore interpret Carroll as providing one rule to govern all automobile searches. The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.
The judgment of the California Court of Appeal is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
Justice STEVENS, with whom Justice MARSHALL joins, dissenting.
It is “‘a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”’
Relying on arguments that conservative judges have repeatedly rejected in past cases, the Court today—despite its disclaimer to the contrary—enlarges the scope of the automobile exception to this “cardinal principle,” which undergirded our Fourth Amendment jurisprudence.
Our decisions have always acknowledged that the warrant requirement imposes a burden on law enforcement. And our cases have not questioned that trained professionals normally make reliable assessments of the existence of probable cause to conduct a search. We have repeatedly held, however, that these factors are outweighed by the individual interest in privacy that is protected by advance judicial approval. The Fourth Amendment dictates that the privacy interest is paramount, no matter how marginal the risk of error might be if the legality of warrantless searches were judged only after the fact.
In its opinion today, the Court recognizes that the police did not have probable cause to search respondent’s vehicle and that a search of anything but the paper bag that respondent had carried from Daza’s apartment and placed in the trunk of his car would have been unconstitutional. Moreover, as I read the opinion, the Court assumes that the police could not have made a warrantless inspection of the bag before it was placed in the car. Finally, the Court also does not question the fact that, under our prior cases, it would have been lawful for the police to seize the container and detain it (and respondent) until they obtained a search warrant. Thus, all of the relevant facts that governed our decisions in Chadwick and Sanders are present here whereas the relevant fact that justified the vehicle search in Ross is not present.
The Court does not attempt to identify any exigent circumstances that would justify its refusal to apply the general rule against warrantless searches.
It is too early to know how much freedom America has lost today. The magnitude of the loss is, however, not nearly as significant as the Court’s willingness to inflict it without even a colorable basis for its rejection of prior law.
I respectfully dissent.
Notes, Comments, and Questions
Imagine that police suspect a person of committing vehicular homicide. The issue is whether the suspect’s actions before a fatal crash qualify as criminal conduct or are instead merely tortious (or perhaps not even blameworthy). Does the automobile exception allow police to search the car’s internal computer without a warrant? See State v. Mobley, 834 S.E.2d 785 (Ga. 2019). The Mobley Court described the data searched by police in a Georgia case.
The record shows that an ACM, also known as an “event data recorder” or “electronic control module,” is an onboard electronic data recording device that is designed to preserve certain data about the operation of a vehicle in the moments preceding certain occurrences, including any event that results in the deployment of airbags. Although the precise data preserved varies from vehicle to vehicle, the data retrieved from the Charger in this case included the speed of the vehicle, the status of the brakes, the status of the brake switch, the time from maximum deceleration to impact, the time from impact to airbag deployment, the speed of the engine, the throttle position, the number of crankshaft revolutions per minute, the status of the driver’s seatbelt, and a diagnostic indicator about the functioning of the ACM.
What arguments best support applying the automobile exception to these data sources? What arguments best support not applying the exception?
The issue remains unsettled, and different courts will likely make different judgments. More background on the issue, see the amicus brief filed in Mobley by the American Civil Liberties Union.
In Collins v. Virginia, 138 S. Ct. 1663 (2018), the Court decided “whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein.” For the majority, the question was straightforward. In an opinion joined by six other Justices, Justice Sotomayor wrote: “Because the scope of the automobile exception extends no further than the automobile itself, it did not justify Officer Rhodes’ invasion of the curtilage. Nothing in this Court’s case law suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant. Such an expansion would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and ‘“untether”’ the exception ‘“from the justifications underlying”’ it.” The Court rejected the idea “that the automobile exception is a categorical one that permits the warrantless search of a vehicle anytime, anywhere, including in a home or curtilage.”
Justice Alito dissented sharply, quoting Charles Dickens: “If that is the law, [a character in Oliver Twist] exclaimed, ‘the law is a ass—a idiot.’” Justice Alito noted, “If the motorcycle had been parked at the curb, instead of in the driveway, it is undisputed that Rhodes could have searched it without obtaining a warrant.” He found it bizarre that search became “unreasonable” “[b]ecause, in order to reach the motorcycle, [the officer] had to walk 30 feet or so up the driveway of the house rented by petitioner’s girlfriend, and by doing that, … invaded the home’s ‘curtilage.’” | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.08%3A_Chapter_9_-_Warrant_Exceptions.txt |
Warrant Exception: Searches Incident to a Lawful Arrest
When police perform a lawful arrest, they are allowed to search the arrestee. The permissible scope of such searches—known as searches incident to lawful arrest (“SILA”)—has been the subject of multiple Supreme Court cases. No warrant is required for a SILA.1
For a search to be justified as a SILA: (1) there must have been an arrest, (2) the arrest must have been “lawful,” and (3) the search must be “incident” to the arrest—that is, close in time and space to the arrest.
Later in the semester, we will study when arrests are permitted. For now, note that because police often need no warrant to arrest a suspect, a SILA can sometimes result from two distinct warrant exceptions. The first allows the underlying arrest, and the second allows the ensuing search.
Supreme Court of the United States
Ted Steven Chimel v. California
Decided June 23, 1969 – 395 U.S. 752
Mr. Justice STEWART delivered the opinion of the Court.
This case raises basic questions concerning the permissible scope under the Fourth Amendment of a search incident to a lawful arrest.
The relevant facts are essentially undisputed. Late in the afternoon of September 13, 1965, three police officers arrived at the Santa Ana, California, home of the petitioner with a warrant authorizing his arrest for the burglary of a coin shop. The officers knocked on the door, identified themselves to the petitioner’s wife, and asked if they might come inside. She ushered them into the house, where they waited 10 or 15 minutes until the petitioner returned home from work. When the petitioner entered the house, one of the officers handed him the arrest warrant and asked for permission to “look around.” The petitioner objected, but was advised that “on the basis of the lawful arrest,” the officers would nonetheless conduct a search. No search warrant had been issued.
Accompanied by the petitioner’s wife, the officers then looked through the entire three-bedroom house, including the attic, the garage, and a small workshop. In some rooms the search was relatively cursory. In the master bedroom and sewing room, however, the officers directed the petitioner’s wife to open drawers and “to physically move contents of the drawers from side to side so that [they] might view any items that would have come from [the] burglary.” After completing the search, they seized numerous items—primarily coins, but also several medals, tokens, and a few other objects. The entire search took between 45 minutes and an hour.
At the petitioner’s subsequent state trial on two charges of burglary, the items taken from his house were admitted into evidence against him, over his objection that they had been unconstitutionally seized. He was convicted, and the judgments of conviction were affirmed by both the California Court of Appeal and the California Supreme Court. Both courts accepted the petitioner’s contention that the arrest warrant was invalid because the supporting affidavit was set out in conclusory terms, but held that since the arresting officers had procured the warrant “in good faith,” and since in any event they had had sufficient information to constitute probable cause for the petitioner’s arrest, that arrest had been lawful. From this conclusion the appellate courts went on to hold that the search of the petitioner’s home had been justified, despite the absence of a search warrant, on the ground that it had been incident to a valid arrest. We granted certiorari in order to consider the petitioner’s substantial constitutional claims.
Without deciding the question, we proceed on the hypothesis that the California courts were correct in holding that the arrest of the petitioner was valid under the Constitution. This brings us directly to the question whether the warrantless search of the petitioner’s entire house can be constitutionally justified as incident to that arrest. The decisions of this Court bearing upon that question have been far from consistent, as even the most cursory review makes evident.
“The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. … And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.”
When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area “within his immediate control”—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The “adherence to judicial processes” mandated by the Fourth Amendment requires no less.
It is argued in the present case that it is “reasonable” to search a man’s house when he is arrested in it. But that argument is founded on little more than a subjective view regarding the acceptability of certain sorts of police conduct, and not on consideration relevant to Fourth Amendment interests. Under such an unconfined analysis, Fourth Amendment protection in this area would approach the evaporation point. It is not easy to explain why, for instance, it is less subjectively “reasonable” to search a man’s house when he is arrested on his front lawn—or just down the street—than it is when he happens to be in the house at the time of arrest. As Mr. Justice Frankfurter put it:
“To say that the search must be reasonable is to require some criterion of reason. It is no guide at all either for a jury or for district judges or the police to say that an ‘unreasonable search’ is forbidden—that the search must be reasonable. What is the test of reason which makes a search reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the history and experience which it embodies and the safeguards afforded by it against the evils to which it was a response.”
Thus, although “[t]he recurring questions of the reasonableness of searches” depend upon “the facts and circumstances—the total atmosphere of the case,” those facts and circumstances must be viewed in the light of established Fourth Amendment principles.
No consideration relevant to the Fourth Amendment suggests any point of rational limitation, once the search is allowed to go beyond the area from which the person arrested might obtain weapons or evidentiary items. The only reasoned distinction is one between a search of the person arrested and the area within his reach on the one hand, and more extensive searches on the other.
[T]he general point so forcefully made by Judge Learned Hand remains:
“After arresting a man in his house, to rummage at will among his papers in search of whatever will convict him, appears to us to be indistinguishable from what might be done under a general warrant; indeed, the warrant would give more protection, for presumably it must be issued by a magistrate. True, by hypothesis the power would not exist, if the supposed offender were not found on the premises; but it is small consolation to know that one’s papers are safe only so long as one is not at home.”
Application of sound Fourth Amendment principles to the facts of this case produces a clear result. The search here went far beyond the petitioner’s person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. There was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area. The scope of the search was, therefore, “unreasonable” under the Fourth and Fourteenth Amendments and the petitioner’s conviction cannot stand.
Reversed.
Mr. Justice WHITE, with whom Mr. Justice BLACK joins, dissenting.
Few areas of the law have been as subject to shifting constitutional standards over the last 50 years as that of the search “incident to an arrest.” There has been a remarkable instability in this whole area, which has seen at least four major shifts in emphasis. Today’s opinion makes an untimely fifth. In my view, the Court should not now abandon the old rule.
The rule which has prevailed, but for very brief or doubtful periods of aberration, is that a search incident to an arrest may extend to those areas under the control of the defendant and where items subject to constitutional seizure may be found. The justification for this rule must, under the language of the Fourth Amendment, lie in the reasonableness of the rule.
In terms, then, the Court must decide whether a given search is reasonable. The Amendment does not proscribe “warrantless searches” but instead it proscribes “unreasonable searches” and this Court has never held nor does the majority today assert that warrantless searches are necessarily unreasonable.
Applying this reasonableness test to the area of searches incident to arrests, one thing is clear at the outset. Search of an arrested man and of the items within his immediate reach must in almost every case be reasonable. There is always a danger that the suspect will try to escape, seizing concealed weapons with which to overpower and injure the arresting officers, and there is a danger that he may destroy evidence vital to the prosecution. Circumstances in which these justifications would not apply are sufficiently rare that inquiry is not made into searches of this scope, which have been considered reasonable throughout.
The justifications which make such a search reasonable obviously do not apply to the search of areas to which the accused does not have ready physical access. This is not enough, however, to prove such searches unconstitutional. The Court has always held, and does not today deny, that when there is probable cause to search and it is “impracticable” for one reason or another to get a search warrant, then a warrantless search may be reasonable. This is the case whether an arrest was made at the time of the search or not.
This is not to say that a search can be reasonable without regard to the probable cause to believe that seizable items are on the premises. But when there are exigent circumstances, and probable cause, then the search may be made without a warrant, reasonably. An arrest itself may often create an emergency situation making it impracticable to obtain a warrant before embarking on a related search. Again assuming that there is probable cause to search premises at the spot where a suspect is arrested, it seems to me unreasonable to require the police to leave the scene in order to obtain a search warrant when they are already legally there to make a valid arrest, and when there must almost always be a strong possibility that confederates of the arrested man will in the meanwhile remove the items for which the police have probable cause to search. This must so often be the case that it seems to me as unreasonable to require a warrant for a search of the premises as to require a warrant for search of the person and his very immediate surroundings.
This case provides a good illustration of my point that it is unreasonable to require police to leave the scene of an arrest in order to obtain a search warrant when they already have probable cause to search and there is a clear danger that the items for which they may reasonably search will be removed before they return with a warrant. Petitioner was arrested in his home after an arrest. There was doubtless probable cause not only to arrest petitioner, but also to search his house. He had obliquely admitted, both to a neighbor and to the owner of the burglarized store, that he had committed the burglary. In light of this, and the fact that the neighbor had seen other admittedly stolen property in petitioner’s house, there was surely probable cause on which a warrant could have issued to search the house for the stolen coins. Moreover, had the police simply arrested petitioner, taken him off to the station house, and later returned with a warrant, it seems very likely that petitioner’s wife, who in view of petitioner’s generally garrulous nature must have known of the robbery, would have removed the coins. For the police to search the house while the evidence they had probable cause to search out and seize was still there cannot be considered unreasonable.
In considering searches incident to arrest, it must be remembered that there will be immediate opportunity to challenge the probable cause for the search in an adversary proceeding. The suspect has been apprised of the search by his very presence at the scene, and having been arrested, he will soon be brought into contact with people who can explain his rights.
An arrested man, by definition conscious of the police interest in him, and provided almost immediately with a lawyer and a judge, is in an excellent position to dispute the reasonableness of his arrest and contemporaneous search in a full adversary proceeding. I would uphold the constitutionality of this search contemporaneous with an arrest since there were probable cause both for the search and for the arrest, exigent circumstances involving the removal or destruction of evidence, and satisfactory opportunity to dispute the issues of probable cause shortly thereafter. In this case, the search was reasonable.
* * *
In the next case, the Court made clear that a search cannot be “incident to a lawful arrest” if no one is arrested.
Supreme Court of the United States
Patrick Knowles v. Iowa
Decided Dec. 8, 1998 – 525 U.S. 113
Chief Justice REHNQUIST delivered the opinion of the Court.
An Iowa police officer stopped petitioner Knowles for speeding, but issued him a citation rather than arresting him. The question presented is whether such a procedure authorizes the officer, consistently with the Fourth Amendment, to conduct a full search of the car. We answer this question “no.”
Knowles was stopped in Newton, Iowa, after having been clocked driving 43 miles per hour on a road where the speed limit was 25 miles per hour. The police officer issued a citation to Knowles, although under Iowa law he might have arrested him. The officer then conducted a full search of the car, and under the driver’s seat he found a bag of marijuana and a “pot pipe.” Knowles was then arrested and charged with violation of state laws dealing with controlled substances.
Before trial, Knowles moved to suppress the evidence so obtained. He argued that the search could not be sustained under the “search incident to arrest” exception because he had not been placed under arrest. At the hearing on the motion to suppress, the police officer conceded that he had neither Knowles’ consent nor probable cause to conduct the search. He relied on Iowa law dealing with such searches.
[Under Iowa law at the time, when an officer was authorized to arrest someone for a traffic offense but instead issued a citation, “the issuance of a citation in lieu of an arrest” did “not affect the officer’s authority to conduct an otherwise lawful search.”]
[T]he trial court denied the motion to suppress and found Knowles guilty. The Supreme Court of Iowa, sitting en banc, affirmed by a divided vote. [T]he Iowa Supreme Court upheld the constitutionality of the search under a bright-line “search incident to citation” exception to the Fourth Amendment’s warrant requirement, reasoning that so long as the arresting officer had probable cause to make a custodial arrest, there need not in fact have been a custodial arrest. We granted certiorari and we now reverse.
[W]e [have] noted the two historical rationales for the “search incident to arrest” exception: (1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial. But neither of these underlying rationales for the search incident to arrest exception is sufficient to justify the search in the present case.
We have recognized that the first rationale—officer safety—is “‘both legitimate and weighty,’” The threat to officer safety from issuing a traffic citation, however, is a good deal less than in the case of a custodial arrest. [A] custodial arrest involves “danger to an officer” because of “the extended exposure which follows the taking of a suspect into custody and transporting him to the police station.” We recognized that “[t]he danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest.” A routine traffic stop, on the other hand, is a relatively brief encounter and “is more analogous to a so-called ‘Terry stop’ … than to a formal arrest.”
This is not to say that the concern for officer safety is absent in the case of a routine traffic stop. It plainly is not. But while the concern for officer safety in this context may justify the “minimal” additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full field-type search. Even without the search authority Iowa urges, officers have other, independent bases to search for weapons and protect themselves from danger. For example, they may order out of a vehicle both the driver and any passengers, perform a “patdown” of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous, conduct a “Terry patdown” of the passenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon, and even conduct a full search of the passenger compartment, including any containers therein, pursuant to a custodial arrest.
Nor has Iowa shown the second justification for the authority to search incident to arrest—the need to discover and preserve evidence. Once Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car.
Iowa nevertheless argues that a “search incident to citation” is justified because a suspect who is subject to a routine traffic stop may attempt to hide or destroy evidence related to his identity (e.g., a driver’s license or vehicle registration), or destroy evidence of another, as yet undetected crime. As for the destruction of evidence relating to identity, if a police officer is not satisfied with the identification furnished by the driver, this may be a basis for arresting him rather than merely issuing a citation. As for destroying evidence of other crimes, the possibility that an officer would stumble onto evidence wholly unrelated to the speeding offense seems remote.
[T]he authority to conduct a full field search as incident to an arrest [is] a “bright-line rule,” which [is] based on the concern for officer safety and destruction or loss of evidence, but which [does] not depend in every case upon the existence of either concern. Here we are asked to extend that “bright-line rule” to a situation where the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is not present at all. We decline to do so. The judgment of the Supreme Court of Iowa is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
Notes, Comments, and Questions
After the Court decided Chimel v. California, the proper physical scope of a SILA was defined with reasonable clarity in most contexts. In cases in which suspects were arrested in or near cars, however, there was substantial confusion about the proper scope of ensuing searches. In particular, the Court has repeatedly considered whether police may search a car from which a suspect was removed (or from which the suspect otherwise exited) shortly prior to arrest. In Arizona v. Gant, the Court considered the continuing vitality of a doctrine set forth in New York v. Belton, 453 U.S. 454 (1981). (Because the Gant Court describes Belton at length, students need not read Belton to understand the controversy it created.) Students should note that Justice Stevens, who wrote for the Court, could not have assembled a majority without the vote of Justice Scalia, who wrote separately to explain his discontent with how the majority responded to criticism of Belton.
Supreme Court of the United States
Arizona v. Rodney Joseph Gant
Decided April 21, 2009 – 556 U.S. 332
Justice STEVENS delivered the opinion of the Court.
After Rodney Gant was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car, police officers searched his car and discovered cocaine in the pocket of a jacket on the backseat. Because Gant could not have accessed his car to retrieve weapons or evidence at the time of the search, the Arizona Supreme Court held that the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement, as defined in Chimel v. California, 395 U.S. 752 (1969), and applied to vehicle searches in New York v. Belton, 453 U.S. 454 (1981), did not justify the search in this case. We agree with that conclusion.
Under Chimel, police may search incident to arrest only the space within an arrestee’s “‘immediate control,’” meaning “the area from within which he might gain possession of a weapon or destructible evidence.” The safety and evidentiary justifications underlying Chimel’s reaching-distance rule determine Belton’s scope. Accordingly, we hold that Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle. [W]e also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.
I
On August 25, 1999, acting on an anonymous tip that the residence at 2524 North Walnut Avenue was being used to sell drugs, Tucson police officers Griffith and Reed knocked on the front door and asked to speak to the owner. Gant answered the door and, after identifying himself, stated that he expected the owner to return later. The officers left the residence and conducted a records check, which revealed that Gant’s driver’s license had been suspended and there was an outstanding warrant for his arrest for driving with a suspended license.
When the officers returned to the house that evening, they found a man near the back of the house and a woman in a car parked in front of it. After a third officer arrived, they arrested the man for providing a false name and the woman for possessing drug paraphernalia. Both arrestees were handcuffed and secured in separate patrol cars when Gant arrived. The officers recognized his car as it entered the driveway, and Officer Griffith confirmed that Gant was the driver by shining a flashlight into the car as it drove by him. Gant parked at the end of the driveway, got out of his car, and shut the door. Griffith, who was about 30 feet away, called to Gant, and they approached each other, meeting 10–to–12 feet from Gant’s car. Griffith immediately arrested Gant and handcuffed him.
Because the other arrestees were secured in the only patrol cars at the scene, Griffith called for backup. When two more officers arrived, they locked Gant in the backseat of their vehicle. After Gant had been handcuffed and placed in the back of a patrol car, two officers searched his car: One of them found a gun, and the other discovered a bag of cocaine in the pocket of a jacket on the backseat.
Gant was charged with two offenses—possession of a narcotic drug for sale and possession of drug paraphernalia (i.e., the plastic bag in which the cocaine was found). He moved to suppress the evidence seized from his car on the ground that the warrantless search violated the Fourth Amendment. Among other things, Gant argued that Belton did not authorize the search of his vehicle because he posed no threat to the officers after he was handcuffed in the patrol car and because he was arrested for a traffic offense for which no evidence could be found in his vehicle. When asked at the suppression hearing why the search was conducted, Officer Griffith responded: “Because the law says we can do it.”
The trial court rejected the State’s contention that the officers had probable cause to search Gant’s car for contraband when the search began but it denied the motion to suppress. Relying on the fact that the police saw Gant commit the crime of driving without a license and apprehended him only shortly after he exited his car, the court held that the search was permissible as a search incident to arrest. A jury found Gant guilty on both drug counts, and he was sentenced to a 3–year term of imprisonment.
After protracted state-court proceedings, the Arizona Supreme Court concluded that the search of Gant’s car was unreasonable within the meaning of the Fourth Amendment. The court’s opinion discussed at length our decision in Belton, which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of an arrest of the vehicle’s recent occupant. The court distinguished Belton as a case concerning the permissible scope of a vehicle search incident to arrest and concluded that it did not answer “the threshold question whether the police may conduct a search incident to arrest at all once the scene is secure.” Relying on our earlier decision in Chimel, the court observed that the search-incident-to-arrest exception to the warrant requirement is justified by interests in officer safety and evidence preservation. When “the justifications underlying Chimel no longer exist because the scene is secure and the arrestee is handcuffed, secured in the back of a patrol car, and under the supervision of an officer,” the court concluded, a “warrantless search of the arrestee’s car cannot be justified as necessary to protect the officers at the scene or prevent the destruction of evidence.” Accordingly, the court held that the search of Gant’s car was unreasonable.
The chorus that has called for us to revisit Belton includes courts, scholars, and Members of this Court who have questioned that decision’s clarity and its fidelity to Fourth Amendment principles. We therefore granted the State’s petition for certiorari.
II
Consistent with our precedent, our analysis begins, as it should in every case addressing the reasonableness of a warrantless search, with the basic rule that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Among the exceptions to the warrant requirement is a search incident to a lawful arrest. The exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.
In Chimel, we held that a search incident to arrest may only include “the arrestee’s person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy. If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.
In Belton, we considered Chimel’s application to the automobile context. A lone police officer in that case stopped a speeding car in which Belton was one of four occupants. While asking for the driver’s license and registration, the officer smelled burnt marijuana and observed an envelope on the car floor marked “Supergold”—a name he associated with marijuana. Thus having probable cause to believe the occupants had committed a drug offense, the officer ordered them out of the vehicle, placed them under arrest, and patted them down. Without handcuffing the arrestees, the officer “‘split them up into four separate areas of the Thruway … so they would not be in physical touching area of each other’” and searched the vehicle, including the pocket of a jacket on the backseat, in which he found cocaine.
The New York Court of Appeals found the search unconstitutional, concluding that after the occupants were arrested the vehicle and its contents were “safely within the exclusive custody and control of the police.” The State asked this Court to consider whether the exception recognized in Chimel permits an officer to search “a jacket found inside an automobile while the automobile’s four occupants, all under arrest, are standing unsecured around the vehicle.” We granted certiorari because “courts ha[d] found no workable definition of ‘the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile.”
[W]e held that when an officer lawfully arrests “the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile” and any containers therein. That holding was based in large part on our assumption “that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach.’”
The Arizona Supreme Court read our decision in Belton as merely delineating “the proper scope of a search of the interior of an automobile” incident to an arrest. That is, when the passenger compartment is within an arrestee’s reaching distance, Belton supplies the generalization that the entire compartment and any containers therein may be reached. On that view of Belton, the state court concluded that the search of Gant’s car was unreasonable because Gant clearly could not have accessed his car at the time of the search. It also found that no other exception to the warrant requirement applied in this case.
Gant now urges us to adopt the reading of Belton followed by the Arizona Supreme Court.
III
Despite the textual and evidentiary support for the Arizona Supreme Court’s reading of Belton, our opinion has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search. This reading may be attributable to Justice Brennan’s dissent in Belton, in which he characterized the Court’s holding as resting on the “fiction … that the interior of a car is always within the immediate control of an arrestee who has recently been in the car.” Under the majority’s approach, he argued, “the result would presumably be the same even if [the officer] had handcuffed Belton and his companions in the patrol car” before conducting the search.
Since we decided Belton, Courts of Appeals have given different answers to the question whether a vehicle must be within an arrestee’s reach to justify a vehicle search incident to arrest, but Justice Brennan’s reading of the Court’s opinion has predominated. As Justice O’Connor observed, “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel.” Justice SCALIA has similarly noted that, although it is improbable that an arrestee could gain access to weapons stored in his vehicle after he has been handcuffed and secured in the backseat of a patrol car, cases allowing a search in “this precise factual scenario … are legion.” Indeed, some courts have upheld searches under Belton “even when … the handcuffed arrestee has already left the scene.”
Under this broad reading of Belton, a vehicle search would be authorized incident to every arrest of a recent occupant notwithstanding that in most cases the vehicle’s passenger compartment will not be within the arrestee’s reach at the time of the search. To read Belton as authorizing a vehicle search incident to every recent occupant’s arrest would thus untether the rule from the justifications underlying the Chimel exception—a result clearly incompatible with our statement in Belton that it “in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” Accordingly, we reject this reading of Belton and hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.
Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. But in others … the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.
Neither the possibility of access nor the likelihood of discovering offense-related evidence authorized the search in this case. Unlike in Belton, which involved a single officer confronted with four unsecured arrestees, the five officers in this case outnumbered the three arrestees, all of whom had been handcuffed and secured in separate patrol cars before the officers searched Gant’s car. Under those circumstances, Gant clearly was not within reaching distance of his car at the time of the search. An evidentiary basis for the search was also lacking in this case. Gant was arrested for driving with a suspended license—an offense for which police could not expect to find evidence in the passenger compartment of Gant’s car. Because police could not reasonably have believed either that Gant could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein, the search in this case was unreasonable.
IV
The State does not seriously disagree with the Arizona Supreme Court’s conclusion that Gant could not have accessed his vehicle at the time of the search, but it nevertheless asks us to uphold the search of his vehicle under the broad reading of Belton discussed above. The State argues that Belton searches are reasonable regardless of the possibility of access in a given case because that expansive rule correctly balances law enforcement interests, including the interest in a bright-line rule, with an arrestee’s limited privacy interest in his vehicle.
For several reasons, we reject the State’s argument. First, the State seriously undervalues the privacy interests at stake. Although we have recognized that a motorist’s privacy interest in his vehicle is less substantial than in his home, the former interest is nevertheless important and deserving of constitutional protection. It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.
At the same time as it undervalues these privacy concerns, the State exaggerates the clarity that its reading of Belton provides. Courts that have read Belton expansively are at odds regarding how close in time to the arrest and how proximate to the arrestee’s vehicle an officer’s first contact with the arrestee must be to bring the encounter within Belton’s purview and whether a search is reasonable when it commences or continues after the arrestee has been removed from the scene. The rule has thus generated a great deal of uncertainty, particularly for a rule touted as providing a “bright line.”
Contrary to the State’s suggestion, a broad reading of Belton is also unnecessary to protect law enforcement safety and evidentiary interests. Under our view, Belton and Thornton [v. United States, 541 U.S.615 (2004)] permit an officer to conduct a vehicle search when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Other established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand.
These exceptions together ensure that officers may search a vehicle when genuine safety or evidentiary concerns encountered during the arrest of a vehicle’s recent occupant justify a search. Construing Belton broadly to allow vehicle searches incident to any arrest would serve no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment to permit a warrantless search on that basis. For these reasons, we are unpersuaded by the State’s arguments that a broad reading of Belton would meaningfully further law enforcement interests and justify a substantial intrusion on individuals’ privacy.
VI
Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. The Arizona Supreme Court correctly held that this case involved an unreasonable search. Accordingly, the judgment of the State Supreme Court is affirmed.
Justice SCALIA, concurring.
To determine what is an “unreasonable” search within the meaning of the Fourth Amendment, we look first to the historical practices the Framers sought to preserve; if those provide inadequate guidance, we apply traditional standards of reasonableness. Since the historical scope of officers’ authority to search vehicles incident to arrest is uncertain, traditional standards of reasonableness govern. It is abundantly clear that those standards do not justify what I take to be the rule set forth in Belton and Thornton: that arresting officers may always search an arrestee’s vehicle in order to protect themselves from hidden weapons. When an arrest is made in connection with a roadside stop, police virtually always have a less intrusive and more effective means of ensuring their safety—and a means that is virtually always employed: ordering the arrestee away from the vehicle, patting him down in the open, handcuffing him, and placing him in the squad car.
Law enforcement officers face a risk of being shot whenever they pull a car over. But that risk is at its height at the time of the initial confrontation; and it is not at all reduced by allowing a search of the stopped vehicle after the driver has been arrested and placed in the squad car. I observed in Thornton that the Government had failed to provide a single instance in which a formerly restrained arrestee escaped to retrieve a weapon from his own vehicle; Arizona and its amici have not remedied that significant deficiency in the present case.
It must be borne in mind that we are speaking here only of a rule automatically permitting a search when the driver or an occupant is arrested. Where no arrest is made, we have held that officers may search the car if they reasonably believe “the suspect is dangerous and … may gain immediate control of weapons.” In the no-arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed.
Justice STEVENS acknowledges that an officer-safety rationale cannot justify all vehicle searches incident to arrest, but asserts that that is not the rule Belton and Thornton adopted. Justice STEVENS would therefore retain the application of Chimel v. California, 395 U.S. 752 (1969), in the car-search context but would apply in the future what he believes our cases held in the past: that officers making a roadside stop may search the vehicle so long as the “arrestee is within reaching distance of the passenger compartment at the time of the search.” I believe that this standard fails to provide the needed guidance to arresting officers and also leaves much room for manipulation, inviting officers to leave the scene unsecured (at least where dangerous suspects are not involved) in order to conduct a vehicle search. In my view we should simply abandon the Belton–Thornton charade of officer safety and overrule those cases. I would hold that a vehicle search incident to arrest is ipso facto “reasonable” only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred. Because respondent was arrested for driving without a license (a crime for which no evidence could be expected to be found in the vehicle), I would hold in the present case that the search was unlawful.
Justice ALITO [in dissent] insists that the Court must demand a good reason for abandoning prior precedent. That is true enough, but it seems to me ample reason that the precedent was badly reasoned and produces erroneous (in this case unconstitutional) results. We should recognize Belton’s fanciful reliance upon officer safety for what it was: “a return to the broader sort of [evidence-gathering] search incident to arrest that we allowed before Chimel.”
Justice ALITO argues that there is no reason to adopt a rule limiting automobile-arrest searches to those cases where the search’s object is evidence of the crime of arrest. I disagree. This formulation of officers’ authority both preserves the outcomes of our prior cases and tethers the scope and rationale of the doctrine to the triggering event. Belton, by contrast, allowed searches precisely when its exigency-based rationale was least applicable: The fact of the arrest in the automobile context makes searches on exigency grounds less reasonable, not more. I also disagree with Justice ALITO’s conclusory assertion that this standard will be difficult to administer in practice; the ease of its application in this case would suggest otherwise.
No other Justice, however, shares my view that application of Chimel in this context should be entirely abandoned. It seems to me unacceptable for the Court to come forth with a 4–to–1–to–4 opinion that leaves the governing rule uncertain. I am therefore confronted with the choice of either leaving the current understanding of Belton and Thornton in effect, or acceding to what seems to me the artificial narrowing of those cases adopted by Justice STEVENS. The latter, as I have said, does not provide the degree of certainty I think desirable in this field; but the former opens the field to what I think are plainly unconstitutional searches—which is the greater evil. I therefore join the opinion of the Court.
Notes, Comments, and Questions
Consider what is included in the “passenger compartment.” Does it include the trunk? What if the car is a hatchback or station wagon? Are the wheel wells or undercarriage part of the passenger compartment? What other warrant exceptions might apply to trunk searches?
Although some have argued that Gant implicitly overruled Belton, one could argue that the majority instead properly confined Belton to facts similar to those that justified the Belton decision itself. In Belton, a police officer stopped a car for speeding on the New York State Thruway. The Thruway is a system of highways covering hundreds of miles and is among the busiest toll roads in the United States.
The car contained four men (including Belton), and the officer was alone. The officer directed the four men to stand apart from one another so that they could not touch each other. By contrast, in Gant, multiple officers saw Gant park his car in a driveway. Perhaps the facts of Belton—a single officer dealing with multiple suspects on a busy highway—justified a search incident to lawful arrest in a way that the facts of Gant did not. In other words, perhaps police officers and courts had erroneously applied the rule of Belton to inappropriate circumstances, and the Gant Court clarified the Court’s prior holding. Then again, perhaps Belton was written too broadly, and the passage of time allowed the Court to see its own error, which it corrected in Gant. In any event, students would be wise to memorize the rule set forth in Gant, which is easy for bar examiners (and law professors) to test.
In 1973, the Court decided in United States v. Robinson, 414 U.S. 218, that police may lawfully open a cigarette package found upon an arrestee’s person during a search incident to arrest. Even though the arresting officer had no particular reason to believe that the cigarette package contained contraband or evidence of crime, the Court held the search permissible. The majority concluded that, so long as officers stay within the temporal and geographic constraints imposed in cases such as Chimel, no further quantum of evidence is required to justify a thorough search of the arrestee’s person, clothing, and immediate surroundings, along with inspection of papers and effects found during these searches. Accordingly, other than the probable cause necessary to justify the underlying arrest, no probable cause (or even reasonable suspicion) is required for a SILA.
Although the rule of Robinson may seem relatively clear at first, the case did not resolve the common issue of locked containers seized incident to arrest; nor did it explicitly address the issue of closed (but not locked) containers found near (but not on the person of) the arrestee. In United States v Chadwick, 433 U.S. 1 (1977) (abrogated on grounds unrelated to SILA law), the Court held that opening an arrestee’s luggage ninety minutes after the arrest could not be justified as “incident” to the arrest—the time delay was too great. But the Court did not decide whether a locked (or otherwise closed) container could be opened closer in time to the arrest. Lower courts have split on the question.2
When the Court decided Riley v. California in 2014, it considered facts about a “container” that would have been unimaginable in 1973. Just a few decades ago, no arrestee had in his pocket a mini-computer full of private data, much less one capable of connecting to even more powerful computers with vast repositories of additional private information. Today, most arrestees carry such devices. The question before the Court was whether the rule from Robinson allows police to obtain data from a mobile phone found during a search incident to lawful arrest.
Supreme Court of the United States
David Leon Riley v. California
Decided June 25, 2014 – 134 S. Ct. 2473
Chief Justice ROBERTS delivered the opinion of the Court.
[This] case[] raise[s] a common question: whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.
A
[P]etitioner David Riley was stopped by a police officer for driving with expired registration tags. In the course of the stop, the officer also learned that Riley’s license had been suspended. The officer impounded Riley’s car, pursuant to department policy, and another officer conducted an inventory search of the car. Riley was arrested for possession of concealed and loaded firearms when that search turned up two handguns under the car’s hood.
An officer searched Riley incident to the arrest and found items associated with the “Bloods” street gang. He also seized a cell phone from Riley’s pants pocket. According to Riley’s uncontradicted assertion, the phone was a “smart phone,” a cell phone with a broad range of other functions based on advanced computing capability, large storage capacity, and Internet connectivity. The officer accessed information on the phone and noticed that some words (presumably in text messages or a contacts list) were preceded by the letters “CK”—a label that, he believed, stood for “Crip Killers,” a slang term for members of the Bloods gang.
At the police station about two hours after the arrest, a detective specializing in gangs further examined the contents of the phone. The detective testified that he “went through” Riley’s phone “looking for evidence, because … gang members will often video themselves with guns or take pictures of themselves with the guns.” Although there was “a lot of stuff” on the phone, particular files that “caught [the detective’s] eye” included videos of young men sparring while someone yelled encouragement using the moniker “Blood.” The police also found photographs of Riley standing in front of a car they suspected had been involved in a shooting a few weeks earlier.
Riley was ultimately charged, in connection with that earlier shooting, with firing at an occupied vehicle, assault with a semiautomatic firearm, and attempted murder. The State alleged that Riley had committed those crimes for the benefit of a criminal street gang, an aggravating factor that carries an enhanced sentence. Prior to trial, Riley moved to suppress all evidence that the police had obtained from his cell phone. He contended that the searches of his phone violated the Fourth Amendment, because they had been performed without a warrant and were not otherwise justified by exigent circumstances. The trial court rejected that argument. At Riley’s trial, police officers testified about the photographs and videos found on the phone, and some of the photographs were admitted into evidence. Riley was convicted on all three counts and received an enhanced sentence of 15 years to life in prison.
The California Court of Appeal affirmed. The court relied on [] California Supreme Court [precedent], which held that the Fourth Amendment permits a warrantless search of cell phone data incident to an arrest, so long as the cell phone was immediately associated with the arrestee’s person.
The California Supreme Court denied Riley’s petition for review and we granted certiorari.
II
In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.
The [] case[] before us concern[s] the reasonableness of a warrantless search incident to a lawful arrest. In 1914, this Court first acknowledged in dictum “the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime.” Since that time, it has been well accepted that such a search constitutes an exception to the warrant requirement. Indeed, the label “exception” is something of a misnomer in this context, as warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant.
Although the existence of the exception for such searches has been recognized for a century, its scope has been debated for nearly as long. That debate has focused on the extent to which officers may search property found on or near the arrestee. [The Court then discussed the development of the law in Chimel, Robinson, and Gant.]
III
[We now must] decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones. [The] phone[] [is] based on technology nearly inconceivable just a few decades ago, when Chimel and Robinson were decided.
Absent more precise guidance from the founding era, we generally determine whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”
On the government interest side, [the Court held in Robinson] that the two risks identified in Chimel—harm to officers and destruction of evidence—are present in all custodial arrests. There are no comparable risks when the search is of digital data. In addition, any privacy interests retained by an individual after arrest [are] significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search [we have previously] considered.
We therefore hold [] that officers must generally secure a warrant before conducting such a search.
A
In doing so, we do not overlook … that searches of a person incident to arrest, “while based upon the need to disarm and to discover evidence,” are reasonable regardless of “the probability in a particular arrest situation that weapons or evidence would in fact be found.” Rather than requiring [] “case-by-case adjudication” … we ask instead whether application of the search incident to arrest doctrine to this particular category of effects would “untether the rule from the justifications underlying the [] exception.”
1
Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.
Perhaps the same might have been said of the cigarette pack seized from Robinson’s pocket. Once an officer gained control of the pack, it was unlikely that Robinson could have accessed the pack’s contents. But unknown physical objects may always pose risks, no matter how slight, during the tense atmosphere of a custodial arrest. The officer in Robinson testified that he could not identify the objects in the cigarette pack but knew they were not cigarettes. Given that, a further search was a reasonable protective measure. No such unknowns exist with respect to digital data.
California suggest[s] that a search of cell phone data might help ensure officer safety in more indirect ways, for example by alerting officers that confederates of the arrestee are headed to the scene. There is undoubtedly a strong government interest in warning officers about such possibilities, but [] California offers [no] evidence to suggest that their concerns are based on actual experience. The proposed consideration would also represent a broadening of Chimel’s concern that an arrestee himself might grab a weapon and use it against an officer “to resist arrest or effect his escape.” And any such threats from outside the arrest scene do not “lurk[ ] in all custodial arrests.” Accordingly, the interest in protecting officer safety does not justify dispensing with the warrant requirement across the board. To the extent dangers to arresting officers may be implicated in a particular way in a particular case, they are better addressed through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances.
2
California focus[es] primarily on … preventing the destruction of evidence. Riley concede[s] that officers could have seized and secured [his] cell phone[] to prevent destruction of evidence while seeking a warrant. That is a sensible concession. And once law enforcement officers have secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone.
California argue[s] that information on a cell phone may nevertheless be vulnerable to two types of evidence destruction unique to digital data—remote wiping and data encryption. As an initial matter, these broader concerns about the loss of evidence are distinct from Chimel’s focus on a defendant who responds to arrest by trying to conceal or destroy evidence within his reach. With respect to remote wiping, the Government’s primary concern turns on the actions of third parties who are not present at the scene of arrest. And data encryption is even further afield. [That] focuses on the ordinary operation of a phone’s security features, apart from any active attempt by a defendant or his associates to conceal or destroy evidence upon arrest.
We have also been given little reason to believe that either problem is prevalent. Moreover, in situations in which an arrest might trigger a remote-wipe attempt or an officer discovers an unlocked phone, it is not clear that the ability to conduct a warrantless search would make much of a difference. The need to effect the arrest, secure the scene, and tend to other pressing matters means that law enforcement officers may well not be able to turn their attention to a cell phone right away.
In any event, as to remote wiping, law enforcement is not without specific means to address the threat. Remote wiping can be fully prevented by disconnecting a phone from the network. There are at least two simple ways to do this: First, law enforcement officers can turn the phone off or remove its battery. Second, if they are concerned about encryption or other potential problems, they can leave a phone powered on and place it in a [] “Faraday bag.”
To the extent that law enforcement still has specific concerns about the potential loss of evidence in a particular case, there remain more targeted ways to address those concerns. If “the police are truly confronted with a ‘now or never’ situation,” they may be able to rely on exigent circumstances to search the phone immediately.
B
The search incident to arrest exception rests not only on the heightened government interests at stake in a volatile arrest situation, but also on an arrestee’s reduced privacy interests upon being taken into police custody.
The fact that an arrestee has diminished privacy interests does not, [however,] mean that the Fourth Amendment falls out of the picture entirely. Not every search “is acceptable solely because a person is in custody.” To the contrary, when “privacy-related concerns are weighty enough” a “search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.”
The [Government] asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches [] of physical items. That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom.
1
Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.
One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, rather than a container the size of the cigarette package in Robinson.
The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.
Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. A decade ago police officers searching an arrestee might have occasionally stumbled across a highly personal item such as a diary. But those discoveries were likely to be few and far between. Today, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate. Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.
Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.
In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.
2
To further complicate the scope of the privacy interests at stake, the data a user views on many modern cell phones may not in fact be stored on the device itself. Treating a cell phone as a container whose contents may be searched incident to an arrest is a bit strained as an initial matter. But the analogy crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen. Moreover, the same type of data may be stored locally on the device for one user and in the cloud for another. [O]fficers searching a phone’s data would not typically know whether the information they are viewing was stored locally at the time of the arrest or has been pulled from the cloud. The possibility that a search might extend well beyond papers and effects in the physical proximity of an arrestee is yet another reason that the privacy interests here dwarf those in Robinson.
IV
We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.
Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest. Our cases have historically recognized that the warrant requirement is “an important working part of our machinery of government,” not merely “an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.”
Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone. “One well-recognized exception applies when ‘“the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’” Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury.
In light of the availability of the exigent circumstances exception, there is no reason to believe that law enforcement officers will not be able to address some of the more extreme hypotheticals that have been suggested: a suspect texting an accomplice who, it is feared, is preparing to detonate a bomb, or a child abductor who may have information about the child’s location on his cell phone. The defendants here recognize—indeed, they stress—that such fact-specific threats may justify a warrantless search of cell phone data. The critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case.
Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.” The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.
We reverse and remand the case for further proceedings not inconsistent with this opinion.
Justice ALITO, concurring in part and concurring in the judgment.
I agree that we should not mechanically apply the rule used in the predigital era to the search of a cell phone. Many cell phones now in use are capable of storing and accessing a quantity of information, some highly personal, that no person would ever have had on his person in hard-copy form. This calls for a new balancing of law enforcement and privacy interests.
The Court strikes this balance in favor of privacy interests with respect to all cell phones and all information found in them, and this approach leads to anomalies. For example, the Court’s broad holding favors information in digital form over information in hard-copy form. Suppose that two suspects are arrested. Suspect number one has in his pocket a monthly bill for his land-line phone, and the bill lists an incriminating call to a long-distance number. He also has in his a wallet a few snapshots, and one of these is incriminating. Suspect number two has in his pocket a cell phone, the call log of which shows a call to the same incriminating number. In addition, a number of photos are stored in the memory of the cell phone, and one of these is incriminating. Under established law, the police may seize and examine the phone bill and the snapshots in the wallet without obtaining a warrant, but under the Court’s holding today, the information stored in the cell phone is out.
While the Court’s approach leads to anomalies, I do not see a workable alternative. Law enforcement officers need clear rules regarding searches incident to arrest, and it would take many cases and many years for the courts to develop more nuanced rules. And during that time, the nature of the electronic devices that ordinary Americans carry on their persons would continue to change.
Notes, Comments, and Questions
Although the Court considered a different question in Carpenter v. United States (Chapter 5)—the issue was whether a “search” occurred at all when police obtained historical mobile phone location data—students likely noticed that the majority opinions in Carpenter and Riley (both by Chief Justice Roberts) made similar observations about the importance of protecting the privacy of data related to modern telephones. As Justice Alito noted in his Riley concurrence, the Court will occasionally reach results that are not satisfying to anyone desiring perfect theoretical coherence in the Court’s Fourth Amendment jurisprudence. The Court must decide the cases before it, and its case-by-case balance of competing interests (such as privacy and crime control) will depend on the facts of individual cases, as well as the march of technological change.
Let’s reconsider Jay-Z’s predicament in “99 Problems.” If an officer arrests Jay-Z for reckless driving after catching him driving 75 in a 55 mph zone, can the officer search the trunk for drugs?
What if instead the officer stops Jay-Z for speeding, looks up the license plate, and sees that Los Angeles County has an outstanding warrant for Jay-Z’s arrest for the crime of marijuana possession. Now can the officer search the trunk?
Two additional points to consider:
When an unarrested third party is near a car, there may be authority for a “sweep” (to quickly search the vehicle for dangerous items third parties could use).
When an unarrested third party is at a house that police wish to search, police likely can secure the house temporarily as they seek a warrant (to prevent mischief by, say, Chimel’s wife). This rule applies only if police have probable cause; otherwise, they cannot obtain a warrant. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.09%3A_Chapter_10_-_The_Warrant_Requirement-_Exceptions_%28Part_2%29.txt |
Waiving the Warrant Requirement: Consent
As is true of most constitutional rights, the right to be free from warrantless searches can be waived. Police investigations rely every day on such consent. Owners of vehicles and luggage allow officers to search their effects, and occupants of houses allow officers to enter and look around. There is no dispute about the principle that genuine consent serves as a valid substitute for a search warrant. The controversial questions include what is necessary for consent to be valid, who may provide valid consent, and whether certain police tactics render otherwise-valid consent ineffective.
Supreme Court of the United States
Merle R. Schneckloth v. Robert Clyde Bustamonte
Decided May 29, 1973 – 412 U.S. 218
Mr. Justice STEWART delivered the opinion of the Court.
It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is “per se unreasonable … subject only to a few specifically established and well-delineated exceptions.” It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. The constitutional question in the present case concerns the definition of “consent” in this Fourth and Fourteenth Amendment context.
I
The respondent was brought to trial in a California court upon a charge of possessing a check with intent to defraud. He moved to suppress the introduction of certain material as evidence against him on the ground that the material had been acquired through an unconstitutional search and seizure. In response to the motion, the trial judge conducted an evidentiary hearing where it was established that the material in question had been acquired by the State under the following circumstances:
While on routine patrol in Sunnyvale, California, at approximately 2:40 in the morning, Police Officer James Rand stopped an automobile when he observed that one headlight and its license plate light were burned out. Six men were in the vehicle. Joe Alcala and the respondent, Robert Bustamonte, were in the front seat with Joe Gonzales, the driver. Three older men were seated in the rear. When, in response to the policeman’s question, Gonzales could not produce a driver’s license, Officer Rand asked if any of the other five had any evidence of identification. Only Alcala produced a license, and he explained that the car was his brother’s. After the six occupants had stepped out of the car at the officer’s request and after two additional policemen had arrived, Officer Rand asked Alcala if he could search the car. Alcala replied, “Sure, go ahead.” Prior to the search no one was threatened with arrest and, according to Officer Rand’s uncontradicted testimony, it “was all very congenial at this time.” Gonzales testified that Alcala actually helped in the search of the car, by opening the trunk and glove compartment. In Gonzales’ words: “[T]he police officer asked Joe [Alcala], he goes, ‘Does the trunk open?’ And Joe said, ‘Yes.’ He went to the car and got the keys and opened up the trunk.” Wadded up under the left rear seat, the police officers found three checks that had previously been stolen from a car wash.
The trial judge denied the motion to suppress, and the checks in question were admitted in evidence at Bustamonte’s trial. On the basis of this and other evidence he was convicted, and the California Court of Appeal for the First Appellate District affirmed the conviction. The California Supreme Court denied review.
Thereafter, the respondent sought a writ of habeas corpus in a federal district court. It was denied. On appeal, the Court of Appeals for the Ninth Circuit, relying on its prior decisions set aside the District Court’s order. The appellate court reasoned that a consent was a waiver of a person’s Fourth and Fourteenth Amendment rights, and that the State was under an obligation to demonstrate, not only that the consent had been uncoerced, but that it had been given with an understanding that it could be freely and effectively withheld. Consent could not be found, the court held, solely from the absence of coercion and a verbal expression of assent. Since the District Court had not determined that Alcala had known that his consent could have been withheld and that he could have refused to have his vehicle searched, the Court of Appeals vacated the order denying the writ and remanded the case for further proceedings. We granted certiorari to determine whether the Fourth and Fourteenth Amendments require the showing thought necessary by the Court of Appeals.
II
It is important to make it clear at the outset what is not involved in this case. The respondent concedes that a search conducted pursuant to a valid consent is constitutionally permissible. [W]e [have] recognized that a search authorized by consent is wholly valid. And similarly the State concedes that “[w]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.”
The precise question in this case, then, is what must the prosecution prove to demonstrate that a consent was “voluntarily” given.
A
The most extensive judicial exposition of the meaning of “voluntariness” has been developed in those cases in which the Court has had to determine the “voluntariness” of a defendant’s confession for purposes of the Fourteenth Amendment.
Those cases yield no talismanic definition of “voluntariness,” mechanically applicable to the host of situations where the question has arisen. “The notion of ‘voluntariness,’” Mr. Justice Frankfurter once wrote, “is itself an amphibian.” It cannot be taken literally to mean a “knowing” choice. “Except where a person is unconscious or drugged or otherwise lacks capacity for conscious choice, all incriminating statements—even those made under brutal treatment—are ‘voluntary’ in the sense of representing a choice of alternatives. On the other hand, if ‘voluntariness’ incorporates notions of ‘but-for’ cause, the question should be whether the statement would have been made even absent inquiry or other official action. Under such a test, virtually no statement would be voluntary because very few people give incriminating statements in the absence of official action of some kind.” It is thus evident that neither linguistics nor epistemology will provide a ready definition of the meaning of “voluntariness.”
This Court’s decisions reflect a frank recognition that the Constitution requires the sacrifice of neither security nor liberty. The Due Process Clause does not mandate that the police forgo all questioning, or that they be given carte blanche to extract what they can from a suspect. “The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.”
In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.1
B
Similar considerations lead us to agree with the courts of California that the question whether a consent to a search was in fact “voluntary” or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. As with police questioning, two competing concerns must be accommodated in determining the meaning of a “voluntary” consent—the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.
In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence. In the present case for example, while the police had reason to stop the car for traffic violations, the State does not contend that there was probable cause to search the vehicle or that the search was incident to a valid arrest of any of the occupants. Yet, the search yielded tangible evidence that served as a basis for a prosecution, and provided some assurance that others, wholly innocent of the crime, were not mistakenly brought to trial. And in those cases where there is probable cause to arrest or search, but where the police lack a warrant, a consent search may still be valuable. If the search is conducted and proves fruitless, that in itself may convince the police that an arrest with its possible stigma and embarrassment is unnecessary, or that a far more extensive search pursuant to a warrant is not justified. In short, a search pursuant to consent may result in considerably less inconvenience for the subject of the search, and, properly conducted, is a constitutionally permissible and wholly legitimate aspect of effective police activity.
But the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting “consent” would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.
The approach of the Ninth Circuit finds no support in any of our decisions that have attempted to define the meaning of “voluntariness.” Its ruling, that the State must affirmatively prove that the subject of the search knew that he had a right to refuse consent, would, in practice, create serious doubt whether consent searches could continue to be conducted. There might be rare cases where it could be proved from the record that a person in fact affirmatively knew of his right to refuse—such as a case where he announced to the police that if he didn’t sign the consent form, “you [police] are going to get a search warrant;” or a case where by prior experience and training a person had clearly and convincingly demonstrated such knowledge. But more commonly where there was no evidence of any coercion, explicit or implicit, the prosecution would nevertheless be unable to demonstrate that the subject of the search in fact had known of his right to refuse consent.
The very object of the inquiry—the nature of a person’s subjective understanding—underlines the difficulty of the prosecution’s burden under the rule applied by the Court of Appeals in this case. Any defendant who was the subject of a search authorized solely by his consent could effectively frustrate the introduction into evidence of the fruits of that search by simply failing to testify that he in fact knew he could refuse to consent. And the near impossibility of meeting this prosecutorial burden suggests why this Court has never accepted any such litmus-paper test of voluntariness.
One alternative that would go far toward proving that the subject of a search did know he had a right to refuse consent would be to advise him of that right before eliciting his consent. That, however, is a suggestion that has been almost universally repudiated by both federal and state courts, and, we think, rightly so. For it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person’s home or office, and under informal and unstructured conditions. The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning. The police may seek to investigate further suspicious circumstances or to follow up leads developed in questioning persons at the scene of a crime. These situations are a far cry from the structured atmosphere of a trial where, assisted by counsel if he chooses, a defendant is informed of his trial rights. And, while surely a closer question, these situations are still immeasurably, far removed from “custodial interrogation” where, in Miranda v. Arizona[, 384 U.S. 436 (1966)] we found that the Constitution required certain now familiar warnings as a prerequisite to police interrogation. Indeed, in language applicable to the typical consent search, we refused to extend the need for warnings.
Consequently, we cannot accept the position of the Court of Appeals in this case that proof of knowledge of the right to refuse consent is a necessary prerequisite to demonstrating a “voluntary” consent. Rather it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of the unique facts and circumstances of each case that is evidenced in our prior decisions involving consent searches.
In short, neither this Court’s prior cases, nor the traditional definition of “voluntariness” requires proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search.
C
It is said, however, that a “consent” is a “waiver” of a person’s rights under the Fourth and Fourteenth Amendments. The argument is that by allowing the police to conduct a search, a person “waives” whatever right he had to prevent the police from searching. It is argued that under the doctrine of Johnson v. Zerbst, 304 U.S. 458 (1938), to establish such a “waiver” the State must demonstrate “an intentional relinquishment or abandonment of a known right or privilege.”
But these standards were enunciated in Johnson in the context of the safeguards of a fair criminal trial. Our cases do not reflect an uncritical demand for a knowing and intelligent waiver in every situation where a person has failed to invoke a constitutional protection. As Mr. Justice Black once observed for the Court: “‘Waiver’ is a vague term used for a great variety of purposes, good and bad, in the law.” With respect to procedural due process, for example, the Court has acknowledged that waiver is possible, while explicitly leaving open the question whether a “knowing and intelligent” waiver need be shown.
The requirement of a “knowing” and “intelligent” waiver was articulated in a case involving the validity of a defendant’s decision to forego a right constitutionally guaranteed to protect a fair trial and the reliability of the truth-determining process. Johnson v. Zerbst dealt with the denial of counsel in a federal criminal trial.
Almost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial. Hence, the standard of a knowing and intelligent waiver has most often been applied to test the validity of a waiver of counsel, either at trial, or upon a guilty plea. The guarantees afforded a criminal defendant at trial also protect him at certain stages before the actual trial, and any alleged waiver must meet the strict standard of an intentional relinquishment of a “known” right. But the “trial” guarantees that have been applied to the “pretrial” stage of the criminal process are similarly designed to protect the fairness of the trial itself.
There is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment. Nothing, either in the purposes behind requiring a “knowing” and “intelligent” waiver of trial rights, or in the practical application of such a requirement suggests that it ought to be extended to the constitutional guarantee against unreasonable searches and seizures.
The protections of the Fourth Amendment are of a wholly different order, and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial. Rather, the Fourth Amendment protects the “security of one’s privacy against arbitrary intrusion by the police ….” The Fourth Amendment “is not an adjunct to the ascertainment of truth.” The guarantees of the Fourth Amendment stand “as a protection of quite different constitutional values—values reflecting the concern of our society for the right of each individual to be let alone.”
Nor can it even be said that a search, as opposed to an eventual trial, is somehow “unfair” if a person consents to a search. While the Fourth and Fourteenth Amendments limit the circumstances under which the police can conduct a search, there is nothing constitutionally suspect in a person’s voluntarily allowing a search. The actual conduct of the search may be precisely the same as if the police had obtained a warrant. And, unlike those constitutional guarantees that protect a defendant at trial, it cannot be said every reasonable presumption ought to be indulged against voluntary relinquishment.
D
Much of what has already been said disposes of the argument that the Court’s decision in the Miranda case requires the conclusion that knowledge of a right to refuse is an indispensable element of a valid consent. The considerations that informed the Court’s holding in Miranda are simply inapplicable in the present case. In Miranda the Court found that the techniques of police questioning and the nature of custodial surroundings produce an inherently coercive situation.
In this case, there is no evidence of any inherently coercive tactics—either from the nature of the police questioning or the environment in which it took place. Indeed, since consent searches will normally occur on a person’s own familiar territory, the specter of incommunicado police interrogation in some remote station house is simply inapposite. There is no reason to believe, under circumstances such as are present here, that the response to a policeman’s question is presumptively coerced; and there is, therefore, no reason to reject the traditional test for determining the voluntariness of a person’s response.
It is also argued that the failure to require the Government to establish knowledge as a prerequisite to a valid consent, will relegate the Fourth Amendment to the special province of “the sophisticated, [the] knowledgeable and the privileged.” We cannot agree. The traditional definition of voluntariness we accept today has always taken into account evidence of minimal schooling, low intelligence, and the lack of any effective warnings to a person of his rights; and the voluntariness of any statement taken under those conditions has been carefully scrutinized to determine whether it was in fact voluntarily given.
E
Our decision today is a narrow one. We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. Because the California court followed these principles in affirming the respondent’s conviction, and because the Court of Appeals for the Ninth Circuit in remanding for an evidentiary hearing required more, its judgment must be reversed.
Mr. Justice DOUGLAS, dissenting.
I agree with the Court of Appeals that “verbal assent” to a search is not enough, that the fact that consent was given to the search does not imply that the suspect knew that the alternative of a refusal existed. As that court stated:
“[U]nder many circumstances a reasonable person might read an officer’s ‘May I’ as the courteous expression of a demand backed by force of law.”
[W]hether Alcala knew he had the right to refuse, we do not know. All the Court of Appeals did was to remand the case to the District Court for a finding—and if necessary, a hearing on that issue.
I would let the case go forward on that basis. The long, time-consuming contest in this Court might well wash out. At least we could be assured that, if it came back, we would not be rendering an advisory opinion. Had I voted to grant this petition, I would suggest we dismiss it as improvidently granted. But, being in the minority, I am bound by the Rule of Four.
Mr. Justice BRENNAN, dissenting.
[T]he search of the vehicle can be justified solely on the ground that the owner’s brother gave his consent—that is, that he waived his Fourth Amendment right “to be secure” against an otherwise “unreasonable” search. The Court holds today that an individual can effectively waive this right even though he is totally ignorant of the fact that, in the absence of his consent, such invasions of his privacy would be constitutionally prohibited. It wholly escapes me how our citizens can meaningfully be said to have waived something as precious as a constitutional guarantee without ever being aware of its existence. In my view, the Court’s conclusion is supported neither by “linguistics,” nor by “epistemology,” nor, indeed, by “common sense.” I respectfully dissent.
Mr. Justice MARSHALL, dissenting.
I would have thought that the capacity to choose necessarily depends upon knowledge that there is a choice to be made. But today the Court reaches the curious result that one can choose to relinquish a constitutional right—the right to be free of unreasonable searches—without knowing that he has the alternative of refusing to accede to a police request to search. I cannot agree, and therefore dissent.
I believe that the Court misstates the true issue in this case. That issue is not, as the Court suggests whether the police overbore Alcala’s will in eliciting his consent, but rather, whether a simple statement of assent to search, without more, should be sufficient to permit the police to search and thus act as a relinquishment of Alcala’s constitutional right to exclude the police. This Court has always scrutinized with great care claims that a person has forgone the opportunity to assert constitutional rights. I see no reason to give the claim that a person consented to a search any less rigorous scrutiny. Every case in this Court involving this kind of search has heretofore spoken of consent as a waiver. Perhaps one skilled in linguistics or epistemology can disregard those comments, but I find them hard to ignore.
The Court assumes that the issue in this case is: what are the standards by which courts are to determine that consent is voluntarily given? It then imports into the law of search and seizure standards developed to decide entirely different questions about coerced confessions.
In contrast, this case deals not with “coercion,” but with “consent,” a subtly different concept to which different standards have been applied in the past. Freedom from coercion is a substantive right, guaranteed by the Fifth and Fourteenth Amendments. Consent, however, is a mechanism by which substantive requirements, otherwise applicable, are avoided. In the context of the Fourth Amendment, the relevant substantive requirements are that searches be conducted only after evidence justifying them has been submitted to an impartial magistrate for a determination of probable cause. There are, of course, exceptions to these requirements based on a variety of exigent circumstances that make it impractical to invalidate a search simply because the police failed to get a warrant. But none of the exceptions relating to the overriding needs of law enforcement are applicable when a search is justified solely by consent. On the contrary, the needs of law enforcement are significantly more attenuated, for probable cause to search may be lacking but a search permitted if the subject’s consent has been obtained. Thus, consent searches are permitted, not because such an exception to the requirements of probable cause and warrant is essential to proper law enforcement, but because we permit our citizens to choose whether or not they wish to exercise their constitutional rights. Our prior decisions simply do not support the view that a meaningful choice has been made solely because no coercion was brought to bear on the subject.
My approach to the case is straight-forward and, to me, obviously required by the notion of consent as a relinquishment of Fourth Amendment rights. I am at a loss to understand why consent “cannot be taken literally to mean a ‘knowing’ choice.” In fact, I have difficulty in comprehending how a decision made without knowledge of available alternatives can be treated as a choice at all.
I must conclude with some reluctance that when the Court speaks of practicality, what it really is talking of is the continued ability of the police to capitalize on the ignorance of citizens so as to accomplish by subterfuge what they could not achieve by relying only on the knowing relinquishment of constitutional rights. Of course it would be “practical” for the police to ignore the commands of the Fourth Amendment, if by practicality we mean that more criminals will be apprehended, even though the constitutional rights of innocent people also go by the board. But such a practical advantage is achieved only at the cost of permitting the police to disregard the limitations that the Constitution places on their behavior, a cost that a constitutional democracy cannot long absorb.
Notes, Comments, and Questions
The Court has affirmed the principles of Schneckloth v. Bustamonte repeatedly. The most prominent cases have involved searches aboard public buses.
The Court addressed consent searches on Greyhound buses in United States v. Drayton, 536 U.S. 194 (2002). There, the Court held that police officers could board a bus and ask for permission to search the property of passengers, as long as under the totality of the circumstances the officers obtained valid consent. The majority reiterated that officers need not advise passengers of their right to leave or to refuse consent. Previously, in Florida v. Bostick, 501 U.S.429 (1991), the Court held that officers may approach bus passengers at random to ask questions and request their consent to searches, provided “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” See also Ohio v. Robinette, 519 U.S. 33 (1996) (rejecting rule created by Ohio judges that required officers at traffic stops to state “‘At this time you legally are free to go’ or [] words of similar import” before initiating extra questioning or seeking consent to search).
Consider the following scenarios:
A police officer assigned to be a “school resource officer” at a high school confronts a student who has been sent to the principal’s office for disrespectful classroom behavior. The officer says, “You must be on drugs to act so stupid. Let me see what’s in that backpack, and then you can go see the principal.” If the student hands over the backpack, does the officer have valid consent to search it? Why or why not?
A police officer has probable cause to believe that drugs are being stored at a certain house. The officer, without a warrant, knocks on the door. When someone answers, the officer says, “I could get a warrant to search this house for drugs, but I’d rather save myself the trouble. If you let me look around the house and I don’t find anything, I’ll move on to other business. But if you refuse, I’ll be back soon with a warrant, and my partner and I will search this place from top to bottom.” If the person at the door admits the officer inside, does the officer have valid consent to enter and search the house? Why or why not?
Now imagine that two people are present when police request consent to enter a home. One person consents while the other says, “Stay out!” Consent or no consent? Why or why not? The Court addresses this issue in the next case.
Supreme Court of the United States
Georgia v. Scott Fitz Randolph
Decided March 22, 2006 – 547 U.S. 103
Justice SOUTER delivered the opinion of the Court.
The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained. The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent. We hold that, in the circumstances here at issue, a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.
I
Respondent Scott Randolph and his wife, Janet, separated in late May 2001, when she left the marital residence in Americus, Georgia, and went to stay with her parents in Canada, taking their son and some belongings. In July, she returned to the Americus house with the child, though the record does not reveal whether her object was reconciliation or retrieval of remaining possessions.
On the morning of July 6, she complained to the police that after a domestic dispute her husband took their son away, and when officers reached the house she told them that her husband was a cocaine user whose habit had caused financial troubles. She mentioned the marital problems and said that she and their son had only recently returned after a stay of several weeks with her parents. Shortly after the police arrived, Scott Randolph returned and explained that he had removed the child to a neighbor’s house out of concern that his wife might take the boy out of the country again; he denied cocaine use, and countered that it was in fact his wife who abused drugs and alcohol.
One of the officers, Sergeant Murray, went with Janet Randolph to reclaim the child, and when they returned she not only renewed her complaints about her husband’s drug use, but also volunteered that there were “‘items of drug evidence’” in the house. Sergeant Murray asked Scott Randolph for permission to search the house, which he unequivocally refused.
The sergeant turned to Janet Randolph for consent to search, which she readily gave. She led the officer upstairs to a bedroom that she identified as Scott’s, where the sergeant noticed a section of a drinking straw with a powdery residue he suspected was cocaine. He then left the house to get an evidence bag from his car and to call the district attorney’s office, which instructed him to stop the search and apply for a warrant. When Sergeant Murray returned to the house, Janet Randolph withdrew her consent. The police took the straw to the police station, along with the Randolphs. After getting a search warrant, they returned to the house and seized further evidence of drug use, on the basis of which Scott Randolph was indicted for possession of cocaine.
He moved to suppress the evidence, as products of a warrantless search of his house unauthorized by his wife’s consent over his express refusal. The trial court denied the motion, ruling that Janet Randolph had common authority to consent to the search.
The Court of Appeals of Georgia reversed and was itself sustained by the State Supreme Court, principally on the ground that “the consent to conduct a warrantless search of a residence given by one occupant is not valid in the face of the refusal of another occupant who is physically present at the scene to permit a warrantless search.” The Supreme Court of Georgia acknowledged this Court’s holding in Matlock [, 415 U.S. 164 (1974)] that “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared” and found Matlock distinguishable just because Scott Randolph was not “absent” from the colloquy on which the police relied for consent to make the search. The State Supreme Court stressed that the officers in Matlock had not been “faced with the physical presence of joint occupants, with one consenting to the search and the other objecting.” It held that an individual who chooses to live with another assumes a risk no greater than “‘an inability to control access to the premises during [his] absence,’” and does not contemplate that his objection to a request to search commonly shared premises, if made, will be overlooked.
We granted certiorari to resolve a split of authority on whether one occupant may give law enforcement effective consent to search shared premises, as against a co-tenant who is present and states a refusal to permit the search. We now affirm.
II
To the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house as unreasonable per se, one “jealously and carefully drawn” exception recognizes the validity of searches with the voluntary consent of an individual possessing authority. That person might be the householder against whom evidence is sought or a fellow occupant who shares common authority over property, when the suspect is absent, and the exception for consent extends even to entries and searches with the permission of a co-occupant whom the police reasonably, but erroneously, believe to possess shared authority as an occupant. None of our co-occupant consent-to-search cases, however, has presented the further fact of a second occupant physically present and refusing permission to search, and later moving to suppress evidence so obtained. The significance of such a refusal turns on the underpinnings of the co-occupant consent rule, as recognized since Matlock.
A
The defendant in that case was arrested in the yard of a house where he lived with a Mrs. Graff and several of her relatives, and was detained in a squad car parked nearby. When the police went to the door, Mrs. Graff admitted them and consented to a search of the house. In resolving the defendant’s objection to use of the evidence taken in the warrantless search, we said that “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.”
The constant element in assessing Fourth Amendment reasonableness in the consent cases, then, is the great significance given to widely shared social expectations, which are naturally enough influenced by the law of property, but not controlled by its rules. Matlock accordingly not only holds that a solitary co-inhabitant may sometimes consent to a search of shared premises, but stands for the proposition that the reasonableness of such a search is in significant part a function of commonly held understanding about the authority that co-inhabitants may exercise in ways that affect each other’s interests.
B
Matlock’s example of common understanding is readily apparent. When someone comes to the door of a domestic dwelling with a baby at her hip, as Mrs. Graff did, she shows that she belongs there, and that fact standing alone is enough to tell a law enforcement officer or any other visitor that if she occupies the place along with others, she probably lives there subject to the assumption tenants usually make about their common authority when they share quarters. They understand that any one of them may admit visitors, with the consequence that a guest obnoxious to one may nevertheless be admitted in his absence by another. As Matlock put it, shared tenancy is understood to include an “assumption of risk,” on which police officers are entitled to rely, and although some group living together might make an exceptional arrangement that no one could admit a guest without the agreement of all, the chance of such an eccentric scheme is too remote to expect visitors to investigate a particular household’s rules before accepting an invitation to come in. So, Matlock relied on what was usual and placed no burden on the police to eliminate the possibility of atypical arrangements, in the absence of reason to doubt that the regular scheme was in place.
It is also easy to imagine different facts on which, if known, no common authority could sensibly be suspected. A person on the scene who identifies himself, say, as a landlord or a hotel manager calls up no customary understanding of authority to admit guests without the consent of the current occupant. A tenant in the ordinary course does not take rented premises subject to any formal or informal agreement that the landlord may let visitors into the dwelling, and a hotel guest customarily has no reason to expect the manager to allow anyone but his own employees into his room. In these circumstances, neither state-law property rights, nor common contractual arrangements, nor any other source points to a common understanding of authority to admit third parties generally without the consent of a person occupying the premises. And when it comes to searching through bureau drawers, there will be instances in which even a person clearly belonging on premises as an occupant may lack any perceived authority to consent; “a child of eight might well be considered to have the power to consent to the police crossing the threshold into that part of the house where any caller, such as a pollster or salesman, might well be admitted,” but no one would reasonably expect such a child to be in a position to authorize anyone to rummage through his parents’ bedroom.
C
To begin with, it is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant’s invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, “stay out.” Without some very good reason, no sensible person would go inside under those conditions.
Unless the people living together fall within some recognized hierarchy, like a household of parent and child or barracks housing military personnel of different grades, there is no societal understanding of superior and inferior, a fact reflected in a standard formulation of domestic property law, that “[e]ach cotenant … has the right to use and enjoy the entire property as if he or she were the sole owner, limited only by the same right in the other cotenants.” [T]here is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another, whether the issue is the color of the curtains or invitations to outsiders.
D
Since the co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all. Accordingly, in the balancing of competing individual and governmental interests entailed by the bar to unreasonable searches, the cooperative occupant’s invitation adds nothing to the government’s side to counter the force of an objecting individual’s claim to security against the government’s intrusion into his dwelling place.
E
There are two loose ends, the first being the explanation given in Matlock for the constitutional sufficiency of a co-tenant’s consent to enter and search: it “rests … on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right ….” If Matlocks co-tenant is giving permission “in his own right,” how can his “own right” be eliminated by another tenant’s objection? The answer appears in the very footnote from which the quoted statement is taken: the “right” to admit the police to which Matlock refers is not an enduring and enforceable ownership right as understood by the private law of property, but is instead the authority recognized by customary social usage as having a substantial bearing on Fourth Amendment reasonableness in specific circumstances. Thus, to ask whether the consenting tenant has the right to admit the police when a physically present fellow tenant objects is not to question whether some property right may be divested by the mere objection of another. It is, rather, the question whether customary social understanding accords the consenting tenant authority powerful enough to prevail over the co-tenant’s objection. The Matlock Court did not purport to answer this question.
The second loose end is the significance of Matlock and Rodriguez after today’s decision.2 Although the Matlock defendant was not present with the opportunity to object, he was in a squad car not far away; the Rodriguez defendant was actually asleep in the apartment, and the police might have roused him with a knock on the door before they entered with only the consent of an apparent co-tenant. If those cases are not to be undercut by today’s holding, we have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.
This is the line we draw, and we think the formalism is justified. So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant’s contrary indication when he expresses it. For the very reason that Rodriguez held it would be unjustifiably impractical to require the police to take affirmative steps to confirm the actual authority of a consenting individual whose authority was apparent, we think it would needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field if we were to hold that reasonableness required the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received. There is no ready reason to believe that efforts to invite a refusal would make a difference in many cases, whereas every co-tenant consent case would turn into a test about the adequacy of the police’s efforts to consult with a potential objector. Better to accept the formalism of distinguishing Matlock from this case than to impose a requirement, time consuming in the field and in the courtroom, with no apparent systemic justification. The pragmatic decision to accept the simplicity of this line is, moreover, supported by the substantial number of instances in which suspects who are asked for permission to search actually consent, albeit imprudently, a fact that undercuts any argument that the police should try to locate a suspected inhabitant because his denial of consent would be a foregone conclusion.
III
This case invites a straightforward application of the rule that a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant. Scott Randolph’s refusal is clear, and nothing in the record justifies the search on grounds independent of Janet Randolph’s consent. The State does not argue that she gave any indication to the police of a need for protection inside the house that might have justified entry into the portion of the premises where the police found the powdery straw (which, if lawfully seized, could have been used when attempting to establish probable cause for the warrant issued later). Nor does the State claim that the entry and search should be upheld under the rubric of exigent circumstances, owing to some apprehension by the police officers that Scott Randolph would destroy evidence of drug use before any warrant could be obtained.
The judgment of the Supreme Court of Georgia is therefore affirmed.
Chief Justice ROBERTS, with whom Justice SCALIA joins, dissenting.
The Court creates constitutional law by surmising what is typical when a social guest encounters an entirely atypical situation. The rule the majority fashions does not implement the high office of the Fourth Amendment to protect privacy, but instead provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room. And the cost of affording such random protection is great, as demonstrated by the recurring cases in which abused spouses seek to authorize police entry into a home they share with a nonconsenting abuser.
The correct approach to the question presented is clearly mapped out in our precedents: The Fourth Amendment protects privacy. If an individual shares information, papers, or places with another, he assumes the risk that the other person will in turn share access to that information or those papers or places with the government. And just as an individual who has shared illegal plans or incriminating documents with another cannot interpose an objection when that other person turns the information over to the government, just because the individual happens to be present at the time, so too someone who shares a place with another cannot interpose an objection when that person decides to grant access to the police, simply because the objecting individual happens to be present.
A warrantless search is reasonable if police obtain the voluntary consent of a person authorized to give it. Co-occupants have “assumed the risk that one of their number might permit [a] common area to be searched.” Just as Mrs. Randolph could walk upstairs, come down, and turn her husband’s cocaine straw over to the police, she can consent to police entry and search of what is, after all, her home, too.
* * *
As the Randolph majority noted, police may rely on the “consent of an occupant who shares, or is reasonably believed to share, authority over the area in common.” In other words, warrantless entry is valid—that is, reasonable—“when based upon the consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not do so.” Illinois v. Rodriguez, 497 U.S. 177 (1990) (emphasis added).
In Randolph, the Court decided that when one occupant consents to a search and another occupant concurrently refuses consent, the refusal gets priority. A clever student might ask, what happens if the occupant who refuses consent somehow disappears from the scene? If he takes a short walk, for example, or is rushed to the hospital after suffering a heart attack, does his refusal keep working?
Supreme Court of the United States
Walter Fernandez v. California
Decided Feb. 25, 2014 – 571 U.S. 292
Justice ALITO delivered the opinion of the Court.
Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants consents. In Georgia v. Randolph we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.
A
The events involved in this case occurred in Los Angeles in October 2009. After observing Abel Lopez cash a check, petitioner Walter Fernandez approached Lopez and asked about the neighborhood in which he lived. When Lopez responded that he was from Mexico, Fernandez laughed and told Lopez that he was in territory ruled by the “D.F.S.,” i.e., the “Drifters” gang. Petitioner then pulled out a knife and pointed it at Lopez’ chest. Lopez raised his hand in self-defense, and petitioner cut him on the wrist.
Lopez ran from the scene and called 911 for help, but petitioner whistled, and four men emerged from a nearby apartment building and attacked Lopez. After knocking him to the ground, they hit and kicked him and took his cell phone and his wallet, which contained \$400 in cash.
A police dispatch reported the incident and mentioned the possibility of gang involvement, and two Los Angeles police officers, Detective Clark and Officer Cirrito, drove to an alley frequented by members of the Drifters. A man who appeared scared walked by the officers and said: “‘[T]he guy is in the apartment.’” The officers then observed a man run through the alley and into the building to which the man was pointing. A minute or two later, the officers heard sounds of screaming and fighting coming from that building.
After backup arrived, the officers knocked on the door of the apartment unit from which the screams had been heard. Roxanne Rojas answered the door. She was holding a baby and appeared to be crying. Her face was red, and she had a large bump on her nose. The officers also saw blood on her shirt and hand from what appeared to be a fresh injury. Rojas told the police that she had been in a fight. Officer Cirrito asked if anyone else was in the apartment, and Rojas said that her 4–year–old son was the only other person present.
After Officer Cirrito asked Rojas to step out of the apartment so that he could conduct a protective sweep, petitioner appeared at the door wearing only boxer shorts. Apparently agitated, petitioner stepped forward and said, “‘You don’t have any right to come in here. I know my rights.’” Suspecting that petitioner had assaulted Rojas, the officers removed him from the apartment and then placed him under arrest. Lopez identified petitioner as his initial attacker, and petitioner was taken to the police station for booking.
Approximately one hour after petitioner’s arrest, Detective Clark returned to the apartment and informed Rojas that petitioner had been arrested. Detective Clark requested and received both oral and written consent from Rojas to search the premises. In the apartment, the police found Drifters gang paraphernalia, a butterfly knife, clothing worn by the robbery suspect, and ammunition. Rojas’ young son also showed the officers where petitioner had hidden a sawed-off shotgun.
B
Petitioner was charged with robbery, infliction of corporal injury on a spouse, cohabitant, or child’s parent, possession of a firearm by a felon, possession of a short-barreled shotgun, and felony possession of ammunition.
Before trial, petitioner moved to suppress the evidence found in the apartment, but after a hearing, the court denied the motion. Petitioner then pleaded nolo contendere to the firearms and ammunition charges. On the remaining counts—for robbery and infliction of corporal injury—he went to trial and was found guilty by a jury. The court sentenced him to 14 years of imprisonment.
The California Court of Appeal affirmed. Because Randolph did not overturn our prior decisions recognizing that an occupant may give effective consent to search a shared residence, the court agreed with the majority of the federal circuits that an objecting occupant’s physical presence is “indispensable to the decision in Randolph.” And because petitioner was not present when Rojas consented, the court held that petitioner’s suppression motion had been properly denied.
The California Supreme Court denied the petition for review, and we granted certiorari.
A
“Consent searches are part of the standard investigatory techniques of law enforcement agencies” and are “a constitutionally permissible and wholly legitimate aspect of effective police activity.” It would be unreasonable—indeed, absurd—to require police officers to obtain a warrant when the sole owner or occupant of a house or apartment voluntarily consents to a search. The owner of a home has a right to allow others to enter and examine the premises, and there is no reason why the owner should not be permitted to extend this same privilege to police officers if that is the owner’s choice. Where the owner believes that he or she is under suspicion, the owner may want the police to search the premises so that their suspicions are dispelled. This may be particularly important where the owner has a strong interest in the apprehension of the perpetrator of a crime and believes that the suspicions of the police are deflecting the course of their investigation. An owner may want the police to search even where they lack probable cause, and if a warrant were always required, this could not be done. And even where the police could establish probable cause, requiring a warrant despite the owner’s consent would needlessly inconvenience everyone involved—not only the officers and the magistrate but also the occupant of the premises, who would generally either be compelled or would feel a need to stay until the search was completed.
B
While consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search, we recognized a narrow exception to this rule in Georgia v. Randolph. The Court reiterated the proposition that a person who shares a residence with others assumes the risk that “any one of them may admit visitors, with the consequence that a guest obnoxious to one may nevertheless be admitted in his absence by another.” But the Court held that “a physically present inhabitant’s express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant.” The Court’s opinion went to great lengths to make clear that its holding was limited to situations in which the objecting occupant is present.
III
In this case, petitioner was not present when Rojas consented, but petitioner still contends that Randolph is controlling. He advances two main arguments. First, he claims that his absence should not matter since he was absent only because the police had taken him away. Second, he maintains that it was sufficient that he objected to the search while he was still present. Such an objection, he says, should remain in effect until the objecting party “no longer wishes to keep the police out of his home.” Neither of these arguments is sound.
We first consider the argument that the presence of the objecting occupant is not necessary when the police are responsible for his absence. In Randolph, the Court suggested in dictum that consent by one occupant might not be sufficient if “there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.” We do not believe the statement should be read to suggest that improper motive may invalidate objectively justified removal. Hence, it does not govern here.
This brings us to petitioner’s second argument, viz., that his objection, made at the threshold of the premises that the police wanted to search, remained effective until he changed his mind and withdrew his objection. This argument is inconsistent with Randolph’s reasoning in at least two important ways. First, the argument cannot be squared with the “widely shared social expectations” or “customary social usage” upon which the Randolph holding was based.
It seems obvious that the calculus of this hypothetical caller would likely be quite different if the objecting tenant was not standing at the door. When the objecting occupant is standing at the threshold saying “stay out,” a friend or visitor invited to enter by another occupant can expect at best an uncomfortable scene and at worst violence if he or she tries to brush past the objector. But when the objector is not on the scene (and especially when it is known that the objector will not return during the course of the visit), the friend or visitor is much more likely to accept the invitation to enter. Thus, petitioner’s argument is inconsistent with Randolph’s reasoning.
Second, petitioner’s argument would create the very sort of practical complications that Randolph sought to avoid. The Randolph Court recognized that it was adopting a “formalis[tic]” rule, but it did so in the interests of “simple clarity” and administrability.
The rule that petitioner would have us adopt would produce a plethora of practical problems. For one thing, there is the question of duration. Petitioner argues that an objection, once made, should last until it is withdrawn by the objector, but such a rule would be unreasonable. Suppose that a husband and wife owned a house as joint tenants and that the husband, after objecting to a search of the house, was convicted and sentenced to a 15–year prison term. Under petitioner’s proposed rule, the wife would be unable to consent to a search of the house 10 years after the date on which her husband objected. We refuse to stretch Randolph to such strange lengths.
Nor are we persuaded to hold that an objection lasts for a “reasonable” time. “[I]t is certainly unusual for this Court to set forth precise time limits governing police action” and what interval of time would be reasonable in this context? A week? A month? A year? Ten years?
Petitioner’s rule would also require the police and ultimately the courts to determine whether, after the passage of time, an objector still had “common authority” over the premises, and this would often be a tricky question. Suppose that an incarcerated objector and a consenting co-occupant were joint tenants on a lease. If the objector, after incarceration, stopped paying rent, would he still have “common authority,” and would his objection retain its force? Would it be enough that his name remained on the lease? Would the result be different if the objecting and consenting lessees had an oral month-to-month tenancy?
Another problem concerns the procedure needed to register a continuing objection. Would it be necessary for an occupant to object while police officers are at the door? If presence at the time of consent is not needed, would an occupant have to be present at the premises when the objection was made? Could an objection be made pre-emptively? Could a person like Scott Randolph, suspecting that his estranged wife might invite the police to view his drug stash and paraphernalia, register an objection in advance? Could this be done by posting a sign in front of the house? Could a standing objection be registered by serving notice on the chief of police?
Finally, there is the question of the particular law enforcement officers who would be bound by an objection. Would this set include just the officers who were present when the objection was made? Would it also apply to other officers working on the same investigation? Would it extend to officers who were unaware of the objection? How about officers assigned to different but arguably related cases? Would it be limited by law enforcement agency?
If Randolph is taken at its word—that it applies only when the objector is standing in the door saying “stay out” when officers propose to make a consent search—all of these problems disappear.
Putting the exception the Court adopted in Randolph to one side, the lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search. Any other rule would trample on the rights of the occupant who is willing to consent. Such an occupant may want the police to search in order to dispel “suspicion raised by sharing quarters with a criminal.” And an occupant may want the police to conduct a thorough search so that any dangerous contraband can be found and removed. In this case, for example, the search resulted in the discovery and removal of a sawed-off shotgun to which Rojas’ 4–year–old son had access.
Denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence. Having beaten Rojas, petitioner would bar her from controlling access to her own home until such time as he chose to relent. The Fourth Amendment does not give him that power.
The judgment of the California Court of Appeal is affirmed.
Justice GINSBURG, with whom Justice SOTOMAYOR and Justice KAGAN join, dissenting.
This case calls for a straightforward application of Randolph. The police officers in Randolph were confronted with a scenario closely resembling the situation presented here. After Walter Fernandez, while physically present at his home, rebuffed the officers’ request to come in, the police removed him from the premises and then arrested him, albeit with cause to believe he had assaulted his cohabitant, Roxanne Rojas. At the time of the arrest, Rojas said nothing to contradict Fernandez’ refusal. About an hour later, however, and with no attempt to obtain a search warrant, the police returned to the apartment and prevailed upon Rojas to sign a consent form authorizing search of the premises.
In this case, the police could readily have obtained a warrant to search the shared residence. The Court does not dispute this, but instead disparages the warrant requirement as inconvenient, burdensome, entailing delay “[e]ven with modern technological advances.”
Although the police have probable cause and could obtain a warrant with dispatch, if they can gain the consent of someone other than the suspect, why should the law insist on the formality of a warrant? Because the Framers saw the neutral magistrate as an essential part of the criminal process shielding all of us, good or bad, saint or sinner, from unchecked police activity.
I would honor the Fourth Amendment’s warrant requirement and hold that Fernandez’ objection to the search did not become null upon his arrest and removal from the scene. “There is every reason to conclude that securing a warrant was entirely feasible in this case, and no reason to contract the Fourth Amendment’s dominion.”
Notes, Comments, and Questions
Justice Souter, who wrote for the majority in Randolph, retired before Fernandez was decided. In addition, Justice Kennedy, who voted with the Randolph majority, supported the Fernandez majority in its limitation of the holding of Randolph to its unusual facts. Justice Breyer, who concurred with the Court’s judgement in Randolph but did not endorse all of the majority’s reasoning, also joined Justice Alito’s majority opinion in Fernandez. In short, while Randolph remains good law, its reasoning may not have support from a current majority of the Court, and its holding is unlikely to be applied to new fact patterns.
Beyond the somewhat esoteric questions presented by Randolph and Fernandez, the broader issue of consent inspires intense disagreements. In particular, dissenting Justices question whether people can really “terminate encounters” with police officers as easily as majority opinions seems to suggest, and they argue that refusing consent is not always practical (or even possible), particularly among portions of the populations already uneasy with police. Observers note that gender, among other factors, affects whether one has the confidence to deny consent. See David K. Kessler, Free to Leave? An Empirical Look at the Fourth Amendment’s Seizure Standard, 99 J. Crim L. & Criminology 51 (2009) (reporting on random survey of Boston residents concerning sidewalks and buses, finding that “women and young people feel less free to leave than other groups”).
On the other hand, robust cooperation with police is essential to the prevention and detection of crime. If police needed a warrant every time they searched a car, bag, or house, investigations would be slowed considerably. This reality encourages Justices to avoid placing high hurdles in the path of officers who seek consent from members of the public.
The Authority of Co-Occupants and Co-Owners to Consent to Searches
Students, generally familiar with shared housing, frequently ask about the scope of authority possessed by a co-occupant to consent to searches of shared living quarters. In particular, when two or more students share a common living room and kitchen yet have individual bedrooms, can one resident of a shared apartment allow police to search the entire premises? The answer is that residents may authorize searches of areas over which they have control, whether sole control or shared control. Accordingly, in the apartment described above, a resident could permit police to search the living room, the kitchen, and her own personal bedroom, but she would not have authority to authorize searches of someone else’s bedroom.
The same principle applies to items that are shared or are lent by an owner to another person. Someone permitted to use and carry a backpack—whether the sole owner, a co-owner, or a borrower—may authorize police to search the bag.
Recall that police can rely on apparent authority—a search is reasonable as long as officers reasonably believe they receive valid consent. Nonetheless, officers should be careful when entering shared premises with consent to learn what areas are controlled by the consenting resident. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.10%3A_Chapter_11_-_The_Warrant_Requirement-_Exceptions_%28Part_3%29.txt |
Warrant Exception: Exigent Circumstances
The Court has grouped a handful of recurring situations under the umbrella term “exigent circumstances.” This exception allows police to conduct searches without warrants as long as officers have probable cause to believe that one of the approved kinds of unusual situations—that is, exigent circumstances—exists. For all the categories of exigent circumstances, the Court has decided that seeking a warrant would be impossible, or at least impractical. The key categories are: (1) hot pursuit of a fleeing criminal suspect, (2) protection of public safety from immediate threats, and (3) preservation of evidence (that officers have probable cause to believe is subject to seizure and will be found on the premises) from destruction.
We begin with hot pursuit.
Exigent Circumstances: Hot Pursuit
Supreme Court of the United States
Warden, Maryland Penitentiary v. Bennie Joe Hayden
Decided May 29, 1967 – 387 U.S. 294
Mr. Justice BRENNAN delivered the opinion of the Court.
We review in this case the validity of the proposition that there is under the Fourth Amendment a “distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime.”
A Maryland court sitting without a jury convicted respondent of armed robbery. Items of his clothing, a cap, jacket, and trousers, among other things, were seized during a search of his home, and were admitted in evidence without objection. After unsuccessful state court proceedings, he sought and was denied federal habeas corpus relief in the District Court for Maryland. A divided panel of the Court of Appeals for the Fourth Circuit reversed. The Court of Appeals held that respondent was correct in his contention that the clothing seized was improperly admitted in evidence because the items had “evidential value only” and therefore were not lawfully subject to seizure. We granted certiorari. We reverse.
I
About 8 a.m. on March 17, 1962, an armed robber entered the business premises of the Diamond Cab Company in Baltimore, Maryland. He took some \$363 and ran. Two cab drivers in the vicinity, attracted by shouts of “Holdup,” followed the man to 2111 Cocoa Lane. One driver notified the company dispatcher by radio that the man was [Black,] about 5’ 8” tall, wearing a light cap and dark jacket, and that he had entered the house on Cocoa Lane. The dispatcher relayed the information to police who were proceeding to the scene of the robbery. Within minutes, police arrived at the house in a number of patrol cars. An officer knocked and announced their presence. Mrs. Hayden answered, and the officers told her they believed that a robber had entered the house, and asked to search the house. She offered no objection.1
The officers spread out through the first and second floors and the cellar in search of the robber. Hayden was found in an upstairs bedroom feigning sleep. He was arrested when the officers on the first floor and in the cellar reported that no other man was in the house. Meanwhile an officer was attracted to an adjoining bathroom by the noise of running water, and discovered a shotgun and a pistol in a flush tank; another officer who, according to the District Court, “was searching the cellar for a man or the money” found in a washing machine a jacket and trousers of the type the fleeing man was said to have worn. A clip of ammunition for the pistol and a cap were found under the mattress of Hayden’s bed, and ammunition for the shotgun was found in a bureau drawer in Hayden’s room. All these items of evidence were introduced against respondent at his trial.
II
We agree with the Court of Appeals that neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, “the exigencies of the situation made that course imperative.” The police were informed that an armed robbery had taken place, and that the suspect had entered 2111 Cocoa Lane less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.
[T]he seizures occurred prior to or immediately contemporaneous with Hayden’s arrest, as part of an effort to find a suspected felon, armed, within the house into which he had run only minutes before the police arrived. The permissible scope of search must, therefore, at the least, be as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the house may resist or escape.
It is argued that, while the weapons, ammunition, and cap may have been seized in the course of a search for weapons, the officer who seized the clothing was searching neither for the suspect nor for weapons when he looked into the washing machine in which he found the clothing. But even if we assume, although we do not decide, that the exigent circumstances in this case made lawful a search without warrant only for the suspect or his weapons, it cannot be said on this record that the officer who found the clothes in the washing machine was not searching for weapons. He testified that he was searching for the man or the money, but his failure to state explicitly that he was searching for weapons, in the absence of a specific question to that effect, can hardly be accorded controlling weight. He knew that the robber was armed and he did not know that some weapons had been found at the time he opened the machine. In these circumstances the inference that he was in fact also looking for weapons is fully justified.
III
We come, then, to the question whether, even though the search was lawful, the Court of Appeals was correct in holding that the seizure and introduction of the items of clothing violated the Fourth Amendment because they are “mere evidence.” The distinction made by some of our cases between seizure of items of evidential value only and seizure of instrumentalities, fruits, or contraband has been criticized by courts and commentators. The Court of Appeals, however, felt “obligated to adhere to it.” We today reject the distinction as based on premises no longer accepted as rules governing the application of the Fourth Amendment.
Nothing in the language of the Fourth Amendment supports the distinction between “mere evidence” and instrumentalities, fruits of crime, or contraband. Privacy is disturbed no more by a search directed to a purely evidentiary object than it is by a search directed to an instrumentality, fruit, or contraband. A magistrate can intervene in both situations, and the requirements of probable cause and specificity can be preserved intact. Moreover, nothing in the nature of property seized as evidence renders it more private than property seized, for example, as an instrumentality; quite the opposite may be true. Indeed, the distinction is wholly irrational, since, depending on the circumstances, the same “papers and effects” may be “mere evidence” in one case and “instrumentality” in another.
The judgment of the Court of Appeals is reversed.
Notes, Comments, and Questions
Hot pursuit allows officers to follow a fleeing felon into a house. The Court has explained that “‘hot pursuit’ means some sort of a chase, but it need not be an extended hue and cry ‘in and about (the) public streets.’” United States v. Santana, 427 U.S. 38 (1976).
After entering a home in hot pursuit, police may look around to protect themselves, find the suspect, find weapons, etc. The Court in Hayden even allows an officer to search a washing machine around the time the suspect was caught elsewhere. Consider the following scenario:
Police have probable cause to arrest a suspect for a misdemeanor. The suspect flees, and police give chase. If the suspect enters a home, may police follow? Why or why not? See Lange v. California, 141 S. Ct. 2011 (2021), in which the Court declined to extend the exception to all fleeing misdemeananor suspects. The Court left open the possibility that some misdemeanants might be covered. The crime at issue in Lange was failing to comply with a police signal.
In addition to its appearance in criminal procedure law, “hot pursuit” is a term of art in international law. A “backgrounder” published by the Council on Foreign Relations (CFR) describes the doctrine as follows: “The doctrine generally pertains to the law of the seas and the ability of one state’s navy to pursue a foreign ship that has violated laws and regulations in its territorial waters (twelve nautical miles from shore), even if the ship flees to the high seas.” Quoting Professor Michael P. Scharf, the CFR document explained further: “It means you are literally and temporally in pursuit and following the tail of a fugitive. … [A state] is allowed to temporarily violate borders to make an apprehension under those circumstances.”
Students interested in further information can review the 1982 UN Convention on the Law of the Sea, which covers hot pursuit in Article 111, along with the 1958 Convention on the High Seas, which covers the doctrine in Article 23. Students will notice similarities among the international law doctrine and our domestic criminal procedure rule. Under each, state agents are permitted to briefly enter otherwise prohibited areas for law enforcement purposes. On the other hand, application of “hot pursuit” on land (for example, entering a foreign country to capture or kill a wanted terrorist) is disputed in international law.
In the next case, the Court considers whether a “routine felony arrest” constitutes exigent circumstances and accordingly allows warrantless entry of a home in which police have probable cause to believe the felony suspect will be found. Students should consider that even in the Bronx in 1970—the location and year of the search at issue—the crime rate was not so high that arresting a man suspected of murdering someone two days earlier during an armed robbery had become “routine.” What then made this scenario different from “hot pursuit” and other sorts of exigent circumstances in the eyes of the Justices?
Supreme Court of the United States
Theodore Payton v. New York
Decided April 15, 1980 – 445 U.S. 573
Mr. Justice STEVENS delivered the opinion of the Court.
These appeals challenge the constitutionality of New York statutes that authorize police officers to enter a private residence without a warrant and with force, if necessary, to make a routine felony arrest.
I
On January 14, 1970, after two days of intensive investigation, New York detectives had assembled evidence sufficient to establish probable cause to believe that Theodore Payton had murdered the manager of a gas station two days earlier. At about 7:30 a.m. on January 15, six officers went to Payton’s apartment in the Bronx, intending to arrest him. They had not obtained a warrant. Although light and music emanated from the apartment, there was no response to their knock on the metal door. They summoned emergency assistance and, about 30 minutes later, used crowbars to break open the door and enter the apartment. No one was there. In plain view, however, was a .30-caliber shell casing that was seized and later admitted into evidence at Payton’s murder trial.
In due course Payton surrendered to the police, was indicted for murder, and moved to suppress the evidence taken from his apartment. The trial judge held that the warrantless and forcible entry was authorized by the New York Code of Criminal Procedure, and that the evidence in plain view was properly seized. He found that exigent circumstances justified the officers’ failure to announce their purpose before entering the apartment as required by the statute. He had no occasion, however, to decide whether those circumstances also would have justified the failure to obtain a warrant, because he concluded that the warrantless entry was adequately supported by the statute without regard to the circumstances. The Appellate Division, First Department, summarily affirmed. The New York Court of Appeals affirmed the conviction[] of [] Payton.
Before addressing the narrow question presented by these appeals, we put to one side other related problems that are not presented today. Although it is arguable that the warrantless entry to effect Payton’s arrest might have been justified by exigent circumstances, none of the New York courts relied on any such justification. The Court of Appeals majority treated [] Payton’s [] case[] as involving [a] routine arrest in which there was ample time to obtain a warrant, and we will do the same. Accordingly, we have no occasion to consider the sort of emergency or dangerous situation, described in our cases as “exigent circumstances,” that would justify a warrantless entry into a home for the purpose of either arrest or search.
Nor do these cases raise any question concerning the authority of the police, without either a search or arrest warrant, to enter a third party’s home to arrest a suspect. The police broke into Payton’s apartment intending to arrest Payton. We also note that it [is not] argued that the police lacked probable cause to believe that [Payton] was at home when they entered. Finally, we are dealing with [an] entr[y] into [a] home[] made without the consent of any occupant.
II
It is familiar history that indiscriminate searches and seizures conducted under the authority of “general warrants” were the immediate evils that motivated the framing and adoption of the Fourth Amendment. It is [] perfectly clear that the evil the Amendment was designed to prevent was broader than the abuse of a general warrant. Unreasonable searches or seizures conducted without any warrant at all are condemned by the plain language of the first clause of the Amendment. Almost a century ago the Court stated in resounding terms that the principles reflected in the Amendment “reached farther than the concrete form” of the specific cases that gave it birth, and “apply to all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life.”
The simple language of the Amendment applies equally to seizures of persons and to seizures of property. Our analysis in this case may therefore properly commence with rules that have been well established in Fourth Amendment litigation involving tangible items. As the Court reiterated just a few years ago, the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” And we have long adhered to the view that the warrant procedure minimizes the danger of needless intrusions of that sort.
It is a “basic principle of Fourth Amendment law” that searches and seizures inside a home without a warrant are presumptively unreasonable. Yet it is also well settled that objects such as weapons or contraband found in a public place may be seized by the police without a warrant. The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity. [T]his distinction has equal force when the seizure of a person is involved. [T]he critical point is that any differences in the intrusiveness of entries to search and entries to arrest are merely ones of degree rather than kind. The two intrusions share this fundamental characteristic: the breach of the entrance to an individual’s home. The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home—a zone that finds its roots in clear and specific constitutional terms: “The right of the people to be secure in their … houses … shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.
IV
The parties have argued at some length about the practical consequences of a warrant requirement as a precondition to a felony arrest in the home. In the absence of any evidence that effective law enforcement has suffered in those States that already have such a requirement, we are inclined to view such arguments with skepticism. More fundamentally, however, such arguments of policy must give way to a constitutional command that we consider to be unequivocal.
Finally, we note the State’s suggestion that only a search warrant based on probable cause to believe the suspect is at home at a given time can adequately protect the privacy interests at stake, and since such a warrant requirement is manifestly impractical, there need be no warrant of any kind. We find this ingenious argument unpersuasive. It is true that an arrest warrant requirement may afford less protection than a search warrant requirement, but it will suffice to interpose the magistrate’s determination of probable cause between the zealous officer and the citizen. If there is sufficient evidence of a citizen’s participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law. Thus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.
Because no arrest warrant was obtained, the judgments must be reversed and the cases remanded to the New York Court of Appeals for further proceedings not inconsistent with this opinion.
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting.
The Court today holds that absent exigent circumstances officers may never enter a home during the daytime to arrest for a dangerous felony unless they have first obtained a warrant. This hard-and-fast rule, founded on erroneous assumptions concerning the intrusiveness of home arrest entries, finds little or no support in the common law or in the text and history of the Fourth Amendment. I respectfully dissent.
Today’s decision distorts the historical meaning of the Fourth Amendment, by proclaiming for the first time a rigid warrant requirement for all nonexigent home arrest entries. The history of the Fourth Amendment does not support the rule announced today. At the time that Amendment was adopted the constable possessed broad inherent powers to arrest. The limitations on those powers derived, not from a warrant “requirement,” but from the generally ministerial nature of the constable’s office at common law. Far from restricting the constable’s arrest power, the institution of the warrant was used to expand that authority by giving the constable delegated powers of a superior officer such as a justice of the peace. Hence at the time of the Bill of Rights, the warrant functioned as a powerful tool of law enforcement rather than as a protection for the rights of criminal suspects.
In fact, it was the abusive use of the warrant power, rather than any excessive zeal in the discharge of peace officers’ inherent authority, that precipitated the Fourth Amendment. That Amendment grew out of colonial opposition to the infamous general warrants known as writs of assistance, which empowered customs officers to search at will, and to break open receptacles or packages, wherever they suspected uncustomed goods to be. The writs did not specify where searches could occur and they remained effective throughout the sovereign’s lifetime. In effect, the writs placed complete discretion in the hands of executing officials. Customs searches of this type were beyond the inherent power of common-law officials and were the subject of court suits when performed by colonial customs agents not acting pursuant to a writ.
That the Framers were concerned about warrants, and not about the constable’s inherent power to arrest, is also evident from the text and legislative history of the Fourth Amendment. That provision first reaffirms the basic principle of common law, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ….” The Amendment does not here purport to limit or restrict the peace officer’s inherent power to arrest or search, but rather assumes an existing right against actions in excess of that inherent power and ensures that it remain inviolable. [I]t was not generally considered “unreasonable” at common law for officers to break doors in making warrantless felony arrests. The Amendment’s second clause is directed at the actions of officers taken in their ministerial capacity pursuant to writs of assistance and other warrants. In contrast to the first Clause, the second Clause does purport to alter colonial practice: “and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
That the Fourth Amendment was directed towards safeguarding the rights at common law, and restricting the warrant practice which gave officers vast new powers beyond their inherent authority, is evident from the legislative history of that provision. As originally drafted by James Madison, it was directed only at warrants; so deeply ingrained was the basic common-law premise that it was not even expressed:
“The rights of the people to be secured in their persons[,] their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.” 1 Annals of Cong. 452 (1789).
In sum, the background, text, and legislative history of the Fourth Amendment demonstrate that the purpose was to restrict the abuses that had developed with respect to warrants; the Amendment preserved common-law rules of arrest. Because it was not considered generally unreasonable at common law for officers to break doors to effect a warrantless felony arrest, I do not believe that the Fourth Amendment was intended to outlaw the types of police conduct at issue in the present cases.
Today’s decision rests, in large measure, on the premise that warrantless arrest entries constitute a particularly severe invasion of personal privacy. I do not dispute that the home is generally a very private area or that the common law displayed a special “reverence … for the individual’s right of privacy in his house.” However, the Fourth Amendment is concerned with protecting people, not places, and no talismanic significance is given to the fact that an arrest occurs in the home rather than elsewhere. It is necessary in each case to assess realistically the actual extent of invasion of constitutionally protected privacy. Further, all arrests involve serious intrusions into an individual’s privacy and dignity. Yet we settled in [United States v.] Watson [423 U.S. 411 (1976)], that the intrusiveness of a public arrest is not enough to mandate the obtaining of a warrant. The inquiry in the present case, therefore, is whether the incremental intrusiveness that results from an arrest’s being made in the dwelling is enough to support an inflexible constitutional rule requiring warrants for such arrests whenever exigent circumstances are not present.
Today’s decision ignores the carefully crafted restrictions on the common-law power of arrest entry and thereby overestimates the dangers inherent in that practice. At common law, absent exigent circumstances, entries to arrest could be made only for felony. Even in cases of felony, the officers were required to announce their presence, demand admission, and be refused entry before they were entitled to break doors. Further, it seems generally accepted that entries could be made only during daylight hours. And, in my view, the officer entering to arrest must have reasonable grounds to believe, not only that the arrestee has committed a crime, but also that the person suspected is present in the house at the time of the entry.
These four restrictions on home arrests—felony, knock and announce, daytime, and stringent probable cause—constitute powerful and complementary protections for the privacy interests associated with the home. The felony requirement guards against abusive or arbitrary enforcement and ensures that invasions of the home occur only in case of the most serious crimes. The knock-and-announce and daytime requirements protect individuals against the fear, humiliation, and embarrassment of being aroused from their beds in states of partial or complete undress. And these requirements allow the arrestee to surrender at his front door, thereby maintaining his dignity and preventing the officers from entering other rooms of the dwelling. The stringent probable-cause requirement would help ensure against the possibility that the police would enter when the suspect was not home, and, in searching for him, frighten members of the family or ransack parts of the house, seizing items in plain view. In short, these requirements, taken together, permit an individual suspected of a serious crime to surrender at the front door of his dwelling and thereby avoid most of the humiliation and indignity that the Court seems to believe necessarily accompany a house arrest entry.
While exaggerating the invasion of personal privacy involved in home arrests, the Court fails to account for the danger that its rule will “severely hamper effective law enforcement.” The policeman on his beat must now make subtle discriminations that perplex even judges in their chambers. [P]olice will sometimes delay making an arrest, even after probable cause is established, in order to be sure that they have enough evidence to convict. Then, if they suddenly have to arrest, they run the risk that the subsequent exigency will not excuse their prior failure to obtain a warrant. This problem cannot effectively be cured by obtaining a warrant as soon as probable cause is established because of the chance that the warrant will go stale before the arrest is made.
Further, police officers will often face the difficult task of deciding whether the circumstances are sufficiently exigent to justify their entry to arrest without a warrant. This is a decision that must be made quickly in the most trying of circumstances. If the officers mistakenly decide that the circumstances are exigent, the arrest will be invalid and any evidence seized incident to the arrest or in plain view will be excluded at trial. On the other hand, if the officers mistakenly determine that exigent circumstances are lacking, they may refrain from making the arrest, thus creating the possibility that a dangerous criminal will escape into the community. The police could reduce the likelihood of escape by staking out all possible exits until the circumstances become clearly exigent or a warrant is obtained. But the costs of such a stakeout seem excessive in an era of rising crime and scarce police resources.
The uncertainty inherent in the exigent-circumstances determination burdens the judicial system as well. In the case of searches, exigent circumstances are sufficiently unusual that this Court has determined that the benefits of a warrant outweigh the burdens imposed, including the burdens on the judicial system. In contrast, arrests recurringly involve exigent circumstances, and this Court has heretofore held that a warrant can be dispensed with without undue sacrifice in Fourth Amendment values. The situation should be no different with respect to arrests in the home. Under today’s decision, whenever the police have made a warrantless home arrest there will be the possibility of “endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like.”
Our cases establish that the ultimate test under the Fourth Amendment is one of “reasonableness.” I cannot join the Court in declaring unreasonable a practice which has been thought entirely reasonable by so many for so long.
Notes, Comments, and Questions
Consider the “routine felony arrest” in other locations. Do the police need a search warrant to enter third party’s home? Suspect’s place of employment? Suspect’s privately-owned business? Suspect’s girlfriend’s home? Suspect’s parent’s home?
Exigent Circumstances: Public Safety
The next category of exigent circumstances includes situations in which police believe public safety is at immediate risk. For example, when operators receive a 911 call reporting an ongoing assault, police need not seek a warrant before heading to the crime scene and, if necessary, entering a home. Firefighters and emergency medical personnel also enter buildings without warrants to provide prompt aid. Similarly, officers who hear screams coming from a house or perceive other evidence of imminent danger may have probable cause that justifies warrantless entry. In these situations, police could not effectively “serve and protect” without an exception to the warrant requirement.
Supreme Court of the United States
Brigham City, Utah v. Charles W. Stuart
Decided May 22, 2006 – 547 U.S. 398
Chief Justice ROBERTS delivered the opinion of the [unanimous] Court.
In this case we consider whether police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury. We conclude that they may.
I
This case arises out of a melee that occurred in a Brigham City, Utah, home in the early morning hours of July 23, 2000. At about 3 a.m., four police officers responded to a call regarding a loud party at a residence. Upon arriving at the house, they heard shouting from inside, and proceeded down the driveway to investigate. There, they observed two juveniles drinking beer in the backyard. They entered the backyard, and saw—through a screen door and windows—an altercation taking place in the kitchen of the home. According to the testimony of one of the officers, four adults were attempting, with some difficulty, to restrain a juvenile. The juvenile eventually “broke free, swung a fist and struck one of the adults in the face.” The officer testified that he observed the victim of the blow spitting blood into a nearby sink. The other adults continued to try to restrain the juvenile, pressing him up against a refrigerator with such force that the refrigerator began moving across the floor. At this point, an officer opened the screen door and announced the officers’ presence. Amid the tumult, nobody noticed. The officer entered the kitchen and again cried out, and as the occupants slowly became aware that the police were on the scene, the altercation ceased.
The officers subsequently arrested respondents and charged them with contributing to the delinquency of a minor, disorderly conduct, and intoxication. In the trial court, respondents filed a motion to suppress all evidence obtained after the officers entered the home, arguing that the warrantless entry violated the Fourth Amendment. The court granted the motion, and the Utah Court of Appeals affirmed.
We granted certiorari in light of differences among state courts and the Courts of Appeals concerning the appropriate Fourth Amendment standard governing warrantless entry by law enforcement in an emergency situation.
II
It is a “‘basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.’” Nevertheless, because the ultimate touchstone of the Fourth Amendment is “reasonableness,” the warrant requirement is subject to certain exceptions. We have held, for example, that law enforcement officers may make a warrantless entry onto private property to fight a fire and investigate its cause, to prevent the imminent destruction of evidence, or to engage in “‘hot pursuit’” of a fleeing suspect. “[W]arrants are generally required to search a person’s home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.”
One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury. “‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’” Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.
Respondents do not take issue with these principles, but instead advance two reasons why the officers’ entry here was unreasonable. First, they argue that the officers were more interested in making arrests than quelling violence. They urge us to consider, in assessing the reasonableness of the entry, whether the officers were “indeed motivated primarily by a desire to save lives and property.” The Utah Supreme Court also considered the officers’ subjective motivations relevant.
Our cases have repeatedly rejected this approach. An action is “reasonable” under the Fourth Amendment, regardless of the individual officer’s state of mind, “as long as the circumstances, viewed objectively, justify [the] action.” The officer’s subjective motivation is irrelevant. It therefore does not matter here—even if their subjective motives could be so neatly unraveled—whether the officers entered the kitchen to arrest respondents and gather evidence against them or to assist the injured and prevent further violence.
As respondents note, we have held in the context of programmatic searches conducted without individualized suspicion—such as checkpoints to combat drunk driving or drug trafficking—that “an inquiry into programmatic purpose” is sometimes appropriate. But this inquiry is directed at ensuring that the purpose behind the program is not “ultimately indistinguishable from the general interest in crime control.” It has nothing to do with discerning what is in the mind of the individual officer conducting the search.
Respondents further contend that their conduct was not serious enough to justify the officers’ intrusion into the home. They rely on Welsh v. Wisconsin, 466 U.S. 740 (1984), in which we held that “an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made.” This contention, too, is misplaced. Welsh involved a warrantless entry by officers to arrest a suspect for driving while intoxicated. There, the “only potential emergency” confronting the officers was the need to preserve evidence (i.e., the suspect’s blood-alcohol level)—an exigency that we held insufficient under the circumstances to justify entry into the suspect’s home. Here, the officers were confronted with ongoing violence occurring within the home. Welsh did not address such a situation.
We think the officers’ entry here was plainly reasonable under the circumstances. The officers were responding, at 3 o’clock in the morning, to complaints about a loud party. As they approached the house, they could hear from within “an altercation occurring, some kind of a fight.” “It was loud and it was tumultuous.” The officers heard “thumping and crashing” and people yelling “stop, stop” and “get off me.” As the trial court found, “it was obvious that … knocking on the front door” would have been futile. The noise seemed to be coming from the back of the house; after looking in the front window and seeing nothing, the officers proceeded around back to investigate further. They found two juveniles drinking beer in the backyard. From there, they could see that a fracas was taking place inside the kitchen. A juvenile, fists clenched, was being held back by several adults. As the officers watch, he breaks free and strikes one of the adults in the face, sending the adult to the sink spitting blood.
In these circumstances, the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning. Nothing in the Fourth Amendment required them to wait until another blow rendered someone “unconscious” or “semi-conscious” or worse before entering. The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided.
The manner of the officers’ entry was also reasonable. After witnessing the punch, one of the officers opened the screen door and “yelled in police.” When nobody heard him, he stepped into the kitchen and announced himself again. Only then did the tumult subside. The officer’s announcement of his presence was at least equivalent to a knock on the screen door. Indeed, it was probably the only option that had even a chance of rising above the din. Under these circumstances, there was no violation of the Fourth Amendment’s knock-and-announce rule. Furthermore, once the announcement was made, the officers were free to enter; it would serve no purpose to require them to stand dumbly at the door awaiting a response while those within brawled on, oblivious to their presence.
Accordingly, we reverse the judgment of the Supreme Court of Utah, and remand the case for further proceedings not inconsistent with this opinion.
* * *
In Michigan v. Fisher, the majority (in a brief unsigned opinion, issued without oral argument), held that the law set forth in cases like Brigham City easily justified the warrantless entry at issue. However, while Brigham City was decided by a unanimous Court, the facts of Fisher inspired two Justices to dissent. Regardless of which opinion one finds more persuasive in Fisher, students can use this case to see approximately where different judges will draw the line between exigent circumstances—in which public safety concerns allow warrantless entry—and day-to-day law enforcement scenarios requiring warrants.
Supreme Court of the United States
Michigan v. Jeremy Fisher
Dec. 7, 2009 – 558 U.S. 45
PER CURIAM.
Police officers responded to a complaint of a disturbance near Allen Road in Brownstown, Michigan. Officer Christopher Goolsby later testified that, as he and his partner approached the area, a couple directed them to a residence where a man was “going crazy.” Upon their arrival, the officers found a household in considerable chaos: a pickup truck in the driveway with its front smashed, damaged fenceposts along the side of the property, and three broken house windows, the glass still on the ground outside. The officers also noticed blood on the hood of the pickup and on clothes inside of it, as well as on one of the doors to the house. (It is disputed whether they noticed this immediately upon reaching the house, but undisputed that they noticed it before the allegedly unconstitutional entry.) Through a window, the officers could see respondent, Jeremy Fisher, inside the house, screaming and throwing things. The back door was locked, and a couch had been placed to block the front door.
The officers knocked, but Fisher refused to answer. They saw that Fisher had a cut on his hand, and they asked him whether he needed medical attention. Fisher ignored these questions and demanded, with accompanying profanity, that the officers go to get a search warrant. Officer Goolsby then pushed the front door partway open and ventured into the house. Through the window of the open door he saw Fisher pointing a long gun at him. Officer Goolsby withdrew.
Fisher was charged under Michigan law with assault with a dangerous weapon and possession of a firearm during the commission of a felony. The trial court concluded that Officer Goolsby violated the Fourth Amendment when he entered Fisher’s house, and granted Fisher’s motion to suppress the evidence obtained as a result—that is, Officer Goolsby’s statement that Fisher pointed a rifle at him. The Michigan Court of Appeals initially remanded for an evidentiary hearing, after which the trial court reinstated its order. The Court of Appeals then affirmed. Because the decision of the Michigan Court of Appeals is indeed contrary to our Fourth Amendment case law, particularly Brigham City v. Stuart, we grant the State’s petition for certiorari and reverse.
“[T]he ultimate touchstone of the Fourth Amendment,” we have often said, “is ‘reasonableness.’” Therefore, although “searches and seizures inside a home without a warrant are presumptively unreasonable,” that presumption can be overcome. For example, “the exigencies of the situation [may] make the needs of law enforcement so compelling that the warrantless search is objectively reasonable.”
Brigham City identified one such exigency: “the need to assist persons who are seriously injured or threatened with such injury.” Thus, law enforcement officers “may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” This “emergency aid exception” does not depend on the officers’ subjective intent or the seriousness of any crime they are investigating when the emergency arises. It requires only “an objectively reasonable basis for believing” that “a person within [the house] is in need of immediate aid.”
A straightforward application of the emergency aid exception, as in Brigham City, dictates that the officer’s entry was reasonable. Just as in Brigham City, the police officers here were responding to a report of a disturbance. Just as in Brigham City, when they arrived on the scene they encountered a tumultuous situation in the house—and here they also found signs of a recent injury, perhaps from a car accident, outside. And just as in Brigham City, the officers could see violent behavior inside. Although Officer Goolsby and his partner did not see punches thrown, as did the officers in Brigham City, they did see Fisher screaming and throwing things. It would be objectively reasonable to believe that Fisher’s projectiles might have a human target (perhaps a spouse or a child), or that Fisher would hurt himself in the course of his rage. In short, we find it as plain here as we did in Brigham City that the officer’s entry was reasonable under the Fourth Amendment.
The Michigan Court of Appeals, however, thought the situation “did not rise to a level of emergency justifying the warrantless intrusion into a residence.” Although the Court of Appeals conceded that “there was evidence an injured person was on the premises,” it found it significant that “the mere drops of blood did not signal a likely serious, life-threatening injury.” The court added that the cut Officer Goolsby observed on Fisher’s hand “likely explained the trail of blood” and that Fisher “was very much on his feet and apparently able to see to his own needs.”
Even a casual review of Brigham City reveals the flaw in this reasoning. Officers do not need ironclad proof of “a likely serious, life-threatening” injury to invoke the emergency aid exception. The only injury police could confirm in Brigham City was the bloody lip they saw the juvenile inflict upon the adult. Fisher argues that the officers here could not have been motivated by a perceived need to provide medical assistance, since they never summoned emergency medical personnel. This would have no bearing, of course, upon their need to ensure that Fisher was not endangering someone else in the house. Moreover, even if the failure to summon medical personnel conclusively established that Goolsby did not subjectively believe, when he entered the house, that Fisher or someone else was seriously injured (which is doubtful), the test, as we have said, is not what Goolsby believed, but whether there was “an objectively reasonable basis for believing” that medical assistance was needed, or persons were in danger.
It was error for the Michigan Court of Appeals to replace that objective inquiry into appearances with its hindsight determination that there was in fact no emergency. It does not meet the needs of law enforcement or the demands of public safety to require officers to walk away from a situation like the one they encountered here. Only when an apparent threat has become an actual harm can officers rule out innocuous explanations for ominous circumstances. But “[t]he role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties.” It sufficed to invoke the emergency aid exception that it was reasonable to believe that Fisher had hurt himself (albeit nonfatally) and needed treatment that in his rage he was unable to provide, or that Fisher was about to hurt, or had already hurt, someone else. The Michigan Court of Appeals required more than what the Fourth Amendment demands.
The petition for certiorari is granted. The judgment of the Michigan Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Justice STEVENS, with whom Justice SOTOMAYOR joins, dissenting.
On October 31, 2003, Jeremy Fisher pointed a rifle at Officer Christopher Goolsby when Goolsby attempted to force his way into Fisher’s home without a warrant. Fisher was charged with assault with a dangerous weapon and possession of a dangerous weapon during the commission of a felony. The charges were dismissed after the trial judge granted a motion to suppress evidence of the assault because it was the product of Goolsby’s unlawful entry. In 2005 the Michigan Court of Appeals held that the trial court had erred because it had decided the suppression motion without conducting a full evidentiary hearing. On remand, the trial court conducted such a hearing and again granted the motion to suppress.
As a matter of Michigan law it is well settled that police officers may enter a home without a warrant “when they reasonably believe that a person within is in need of immediate aid.” We have stated the rule in the same way under federal law and have explained that a warrantless entry is justified by the “‘need to protect or preserve life or avoid serious injury.’” The State bears the burden of proof on that factual issue and relied entirely on the testimony of Officer Goolsby in its attempt to carry that burden. Since three years had passed, Goolsby was not sure about certain facts—such as whether Fisher had a cut on his hand—but he did remember that Fisher repeatedly swore at the officers and told them to get a warrant, and that Fisher was screaming and throwing things. Goolsby also testified that he saw “mere drops” of blood outside Fisher’s home and that he did not ask whether anyone else was inside. Goolsby did not testify that he had any reason to believe that anyone else was in the house. Thus, the factual question was whether Goolsby had “an objectively reasonable basis for believing that [Fisher was] seriously injured or imminently threatened with such injury.”
After hearing the testimony, the trial judge was “even more convinced” that the entry was unlawful. He noted the issue was “whether or not there was a reasonable basis to [enter the house] or whether [Goolsby] was just acting on some possibilities” and evidently found the record supported the latter rather than the former. He found the police decision to leave the scene and not return for several hours—without resolving any potentially dangerous situation and without calling for medical assistance—inconsistent with a reasonable belief that Fisher was in need of immediate aid. In sum, the one judge who heard Officer Goolsby’s testimony was not persuaded that Goolsby had an objectively reasonable basis for believing that entering Fisher’s home was necessary to avoid serious injury.
The Michigan Court of Appeals affirmed, concluding that the State had not met its burden. Perhaps because one judge dissented, the Michigan Supreme Court initially granted an application for leave to appeal. After considering briefs and oral argument, however, the majority of that Court vacated its earlier order because it was “no longer persuaded that the questions presented should be reviewed by this Court.”
Today, without having heard Officer Goolsby’s testimony, this Court decides that the trial judge got it wrong. I am not persuaded that he did, but even if we make that assumption, it is hard to see how the Court is justified in micromanaging the day-to-day business of state tribunals making fact-intensive decisions of this kind. We ought not usurp the role of the factfinder when faced with a close question of the reasonableness of an officer’s actions, particularly in a case tried in a state court. I therefore respectfully dissent.
* * *
In Caniglia v. Strom, 141 S. Ct. 1596 (2021), the Court considered whether after a dangerous (possibly suicidal) man was removed from his home, police could confiscate firearms from the home pursuant to a “community caretaking function.” The Court had held in Cady v. Dombrowski, 413 U. S. 433 (1973) that the community caretaking function allowed police to search an impounded vehicle for an unsecured firearm. The Court held that entering the home and seizing the weapons was not justified by the exigent circumstances exception. The Court reasoned that prior caselaw about car searches did not apply to homes, which enjoy greater protection. Then, the Court distinguished cases such as Brigham City and Fisher, in which police perceived immediate dangers and couly not sensibly take time to obtain warrants, from the scenario presented.2 The weapons, sitting in an empty house, did not justify a warrantless search of the home. The concurring opinion of Justice Kavanaugh provides further discussion of what scenarios (such as reasonable fear that an old man has fallen inside his house and needs help) would justify warrantless searches of homes.
Exigent Circumstances: Preserving Evidence from Destruction
Our next category of exigent circumstances includes situations in which police have probable cause to believe (1) that items subject to seizure are in a particular place and (2) that waiting for a warrant would put the evidence at serious risk of destruction. Common scenarios involve suspects who may be about to flush drugs down the toilet, burn documents, or tamper with electronic devices.
Supreme Court of the United States
Kentucky v. Hollis Deshaun King
Decided May 16, 2011 – 563 U.S. 452
Justice ALITO delivered the opinion of the Court.
It is well established that “exigent circumstances,” including the need to prevent the destruction of evidence, permit police officers to conduct an otherwise permissible search without first obtaining a warrant. In this case, we consider whether this rule applies when police, by knocking on the door of a residence and announcing their presence, cause the occupants to attempt to destroy evidence. The Kentucky Supreme Court held that the exigent circumstances rule does not apply in the case at hand because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence. We reject this interpretation of the exigent circumstances rule. The conduct of the police prior to their entry into the apartment was entirely lawful. They did not violate the Fourth Amendment or threaten to do so. In such a situation, the exigent circumstances rule applies.
A
This case concerns the search of an apartment in Lexington, Kentucky. Police officers set up a controlled buy of crack cocaine outside an apartment complex. Undercover Officer Gibbons watched the deal take place from an unmarked car in a nearby parking lot. After the deal occurred, Gibbons radioed uniformed officers to move in on the suspect. He told the officers that the suspect was moving quickly toward the breezeway of an apartment building, and he urged them to “hurry up and get there” before the suspect entered an apartment.
In response to the radio alert, the uniformed officers drove into the nearby parking lot, left their vehicles, and ran to the breezeway. Just as they entered the breezeway, they heard a door shut and detected a very strong odor of burnt marijuana. At the end of the breezeway, the officers saw two apartments, one on the left and one on the right, and they did not know which apartment the suspect had entered. Gibbons had radioed that the suspect was running into the apartment on the right, but the officers did not hear this statement because they had already left their vehicles. Because they smelled marijuana smoke emanating from the apartment on the left, they approached the door of that apartment.
Officer Steven Cobb, one of the uniformed officers who approached the door, testified that the officers banged on the left apartment door “as loud as [they] could” and announced, “‘This is the police’” or “‘Police, police, police.’” Cobb said that “[a]s soon as [the officers] started banging on the door,” they “could hear people inside moving,” and “[i]t sounded as [though] things were being moved inside the apartment.” These noises, Cobb testified, led the officers to believe that drug-related evidence was about to be destroyed.
At that point, the officers announced that they “were going to make entry inside the apartment.” Cobb then kicked in the door, the officers entered the apartment, and they found three people in the front room: respondent Hollis King, respondent’s girlfriend, and a guest who was smoking marijuana. The officers performed a protective sweep of the apartment during which they saw marijuana and powder cocaine in plain view. In a subsequent search, they also discovered crack cocaine, cash, and drug paraphernalia.
Police eventually entered the apartment on the right. Inside, they found the suspected drug dealer who was the initial target of their investigation.
B
In the Fayette County Circuit Court, a grand jury charged respondent with trafficking in marijuana, first-degree trafficking in a controlled substance, and second-degree persistent felony offender status. Respondent filed a motion to suppress the evidence from the warrantless search, but the Circuit Court denied the motion. The court sentenced respondent to 11 years’ imprisonment. The Kentucky Court of Appeals affirmed. The Supreme Court of Kentucky reversed.
A
Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, this Court has inferred that a warrant must generally be secured. “It is a ‘basic principle of Fourth Amendment law,’” we have often said, “‘that searches and seizures inside a home without a warrant are presumptively unreasonable.’” But we have also recognized that this presumption may be overcome in some circumstances because “[t]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Accordingly, the warrant requirement is subject to certain reasonable exceptions.
One well-recognized exception applies when “‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” This Court has identified several exigencies that may justify a warrantless search of a home. [W]hat is relevant here—the need “to prevent the imminent destruction of evidence” has long been recognized as a sufficient justification for a warrantless search.
B
Over the years, lower courts have developed an exception to the exigent circumstances rule, the so-called “police-created exigency” doctrine. Under this doctrine, police may not rely on the need to prevent destruction of evidence when that exigency was “created” or “manufactured” by the conduct of the police.
In applying this exception for the “creation” or “manufacturing” of an exigency by the police, courts require something more than mere proof that fear of detection by the police caused the destruction of evidence. An additional showing is obviously needed because, as the Eighth Circuit has recognized, “in some sense the police always create the exigent circumstances.” That is to say, in the vast majority of cases in which evidence is destroyed by persons who are engaged in illegal conduct, the reason for the destruction is fear that the evidence will fall into the hands of law enforcement. Destruction of evidence issues probably occur most frequently in drug cases because drugs may be easily destroyed by flushing them down a toilet or rinsing them down a drain. Persons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police. Consequently, a rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement.
Presumably for the purpose of avoiding such a result, the lower courts have held that the police-created exigency doctrine requires more than simple causation, but the lower courts have not agreed on the test to be applied.
III
Despite the welter of tests devised by the lower courts, the answer to the question presented in this case follows directly and clearly from the principle that permits warrantless searches in the first place. As previously noted, warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Therefore, the answer to the question before us is that the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.
Some lower courts have adopted a rule that is similar to the one that we recognize today. But others, including the Kentucky Supreme Court, have imposed additional requirements that are unsound and that we now reject.
Bad faith. Some courts, including the Kentucky Supreme Court, ask whether law enforcement officers “‘deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement.’”
This approach is fundamentally inconsistent with our Fourth Amendment jurisprudence. “Our cases have repeatedly rejected” a subjective approach, asking only whether “the circumstances, viewed objectively, justify the action.” “Indeed, we have never held, outside limited contexts such as an “inventory search or administrative inspection …, that an officer’s motive invalidates objectively justifiable behavior under the Fourth Amendment.”
The reasons for looking to objective factors, rather than subjective intent, are clear. Legal tests based on reasonableness are generally objective, and this Court has long taken the view that “evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.”
Reasonable foreseeability. Some courts, again including the Kentucky Supreme Court, hold that police may not rely on an exigency if “‘it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances.’” Courts applying this test have invalidated warrantless home searches on the ground that it was reasonably foreseeable that police officers, by knocking on the door and announcing their presence, would lead a drug suspect to destroy evidence.
Contrary to this reasoning, however, we have rejected the notion that police may seize evidence without a warrant only when they come across the evidence by happenstance. Adoption of a reasonable foreseeability test would also introduce an unacceptable degree of unpredictability. For example, whenever law enforcement officers knock on the door of premises occupied by a person who may be involved in the drug trade, there is some possibility that the occupants may possess drugs and may seek to destroy them. Under a reasonable foreseeability test, it would be necessary to quantify the degree of predictability that must be reached before the police-created exigency doctrine comes into play.
A simple example illustrates the difficulties that such an approach would produce. Suppose that the officers in the present case did not smell marijuana smoke and thus knew only that there was a 50% chance that the fleeing suspect had entered the apartment on the left rather than the apartment on the right. Under those circumstances, would it have been reasonably foreseeable that the occupants of the apartment on the left would seek to destroy evidence upon learning that the police were at the door? Or suppose that the officers knew only that the suspect had disappeared into one of the apartments on a floor with 3, 5, 10, or even 20 units? If the police chose a door at random and knocked for the purpose of asking the occupants if they knew a person who fit the description of the suspect, would it have been reasonably foreseeable that the occupants would seek to destroy evidence?
We have noted that “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.” The reasonable foreseeability test would create unacceptable and unwarranted difficulties for law enforcement officers who must make quick decisions in the field, as well as for judges who would be required to determine after the fact whether the destruction of evidence in response to a knock on the door was reasonably foreseeable based on what the officers knew at the time.
Probable cause and time to secure a warrant. Some courts, in applying the police-created exigency doctrine, fault law enforcement officers if, after acquiring evidence that is sufficient to establish probable cause to search particular premises, the officers do not seek a warrant but instead knock on the door and seek either to speak with an occupant or to obtain consent to search.
This approach unjustifiably interferes with legitimate law enforcement strategies. There are many entirely proper reasons why police may not want to seek a search warrant as soon as the bare minimum of evidence needed to establish probable cause is acquired.
Standard or good investigative tactics. Finally, some lower court cases suggest that law enforcement officers may be found to have created or manufactured an exigency if the court concludes that the course of their investigation was “contrary to standard or good law enforcement practices [or to the policies or practices of their jurisdictions].” This approach fails to provide clear guidance for law enforcement officers and authorizes courts to make judgments on matters that are the province of those who are responsible for federal and state law enforcement agencies.
Respondent argues for a rule that differs from those discussed above, but his rule is also flawed. Respondent contends that law enforcement officers impermissibly create an exigency when they “engage in conduct that would cause a reasonable person to believe that entry is imminent and inevitable.” In respondent’s view, relevant factors include the officers’ tone of voice in announcing their presence and the forcefulness of their knocks. But the ability of law enforcement officers to respond to an exigency cannot turn on such subtleties.
If respondent’s test were adopted, it would be extremely difficult for police officers to know how loudly they may announce their presence or how forcefully they may knock on a door without running afoul of the police-created exigency rule. And in most cases, it would be nearly impossible for a court to determine whether that threshold had been passed. The Fourth Amendment does not require the nebulous and impractical test that respondent proposes.
For these reasons, we conclude that the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment. This holding provides ample protection for the privacy rights that the Amendment protects.
When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. When the police knock on a door but the occupants choose not to respond or to speak, “the investigation will have reached a conspicuously low point,” and the occupants “will have the kind of warning that even the most elaborate security system cannot provide.” And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.
Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.
IV
We now apply our interpretation of the police-created exigency doctrine to the facts of this case.
A
We need not decide whether exigent circumstances existed in this case. Any warrantless entry based on exigent circumstances must, of course, be supported by a genuine exigency. The trial court and the Kentucky Court of Appeals found that there was a real exigency in this case, but the Kentucky Supreme Court expressed doubt on this issue, observing that there was “certainly some question as to whether the sound of persons moving [inside the apartment] was sufficient to establish that evidence was being destroyed.” The Kentucky Supreme Court “assum[ed] for the purpose of argument that exigent circumstances existed,” and it held that the police had impermissibly manufactured the exigency.
We, too, assume for purposes of argument that an exigency existed. We decide only the question on which the Kentucky Supreme Court ruled and on which we granted certiorari: Under what circumstances do police impermissibly create an exigency? Any question about whether an exigency actually existed is better addressed by the Kentucky Supreme Court on remand.
B
In this case, we see no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment. Officer Cobb testified without contradiction that the officers “banged on the door as loud as [they] could” and announced either “‘Police, police, police’” or “‘This is the police.’” This conduct was entirely consistent with the Fourth Amendment, and we are aware of no other evidence that might show that the officers either violated the Fourth Amendment or threatened to do so (for example, by announcing that they would break down the door if the occupants did not open the door voluntarily).
Like the court below, we assume for purposes of argument that an exigency existed. Because the officers in this case did not violate or threaten to violate the Fourth Amendment prior to the exigency, we hold that the exigency justified the warrantless search of the apartment.
The judgment of the Kentucky Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Justice GINSBURG, dissenting.
The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment’s force.
This case involves a principal exception to the warrant requirement, the exception applicable in “exigent circumstances.” “[C]arefully delineated,” the exception should govern only in genuine emergency situations. Circumstances qualify as “exigent” when there is an imminent risk of death or serious injury, or danger that evidence will be immediately destroyed, or that a suspect will escape. The question presented: May police, who could pause to gain the approval of a neutral magistrate, dispense with the need to get a warrant by themselves creating exigent circumstances? I would answer no, as did the Kentucky Supreme Court. The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.
That heavy burden has not been carried here. There was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization. As the Court recognizes, “[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police.” Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity.
In no quarter does the Fourth Amendment apply with greater force than in our homes, our most private space which, for centuries, has been regarded as “‘entitled to special protection.’” Home intrusions, the Court has said, are indeed “the chief evil against which … the Fourth Amendment is directed.” “‘[S]earches and seizures inside a home without a warrant are [therefore] presumptively unreasonable.’” How “secure” do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?
As above noted, to justify the police activity in this case, Kentucky invoked the once-guarded exception for emergencies “in which the delay necessary to obtain a warrant … threaten[s] ‘the destruction of evidence.’” To fit within this exception, “police action literally must be [taken] ‘now or never’ to preserve the evidence of the crime.”
The existence of a genuine emergency depends not only on the state of necessity at the time of the warrantless search; it depends, first and foremost, on “actions taken by the police preceding the warrantless search.” “[W]asting a clear opportunity to obtain a warrant,” therefore, “disentitles the officer from relying on subsequent exigent circumstances.”
Under an appropriately reined-in “emergency” or “exigent circumstances” exception, the result in this case should not be in doubt. The target of the investigation’s entry into the building, and the smell of marijuana seeping under the apartment door into the hallway, the Kentucky Supreme Court rightly determined, gave the police “probable cause … sufficient … to obtain a warrant to search the … apartment.” As that court observed, nothing made it impracticable for the police to post officers on the premises while proceeding to obtain a warrant authorizing their entry.
I [] would not allow an expedient knock to override the warrant requirement. Instead, I would accord that core requirement of the Fourth Amendment full respect. When possible, “a warrant must generally be secured,” the Court acknowledges. There is every reason to conclude that securing a warrant was entirely feasible in this case, and no reason to contract the Fourth Amendment’s dominion.
* * *
In our next chapter, we will review limits to the exigent circumstances exception, including one case, Welsh v. Wisconsin, 466 U.S. 740 (1984), in which the prosecution unsuccessfully raised three different exigent circumstances theories—hot pursuit, safety, and preservation of evidence. We will also examine, more generally, the issue presented by cases in which police desire evidence of the amount of alcohol in a suspect’s blood. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.11%3A_Chapter_12_-_The_Warrant_Requirement-_Exceptions_%28Part_4%29.txt |
Exigent Circumstance: Drunk Driving
Questions concerning the scope of the “exigent circumstances” exception to the warrant requirement have arisen repeatedly in the context of drunk driving cases. These cases commonly involve a special kind of evidence—alcohol in the blood of a driver—at risk of being destroyed by the body’s metabolism.
Supreme Court of the United States
Missouri v. Tyler G. McNeely
Decided April 17, 2013 – 569 U.S. 141
Justice SOTOMAYOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, and an opinion with respect to Part[] III, in which Justice SCALIA, Justice GINSBURG, and Justice KAGAN join.
In Schmerber v. California, 384 U.S. 757 (1966), this Court upheld a warrantless blood test of an individual arrested for driving under the influence of alcohol because the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.” The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.
I
While on highway patrol at approximately 2:08 a.m., a Missouri police officer stopped Tyler McNeely’s truck after observing it exceed the posted speed limit and repeatedly cross the centerline. The officer noticed several signs that McNeely was intoxicated, including McNeely’s bloodshot eyes, his slurred speech, and the smell of alcohol on his breath. McNeely acknowledged to the officer that he had consumed “a couple of beers” at a bar and he appeared unsteady on his feet when he exited the truck. After McNeely performed poorly on a battery of field-sobriety tests and declined to use a portable breath-test device to measure his blood alcohol concentration (BAC), the officer placed him under arrest.
The officer began to transport McNeely to the station house. But when McNeely indicated that he would again refuse to provide a breath sample, the officer changed course and took McNeely to a nearby hospital for blood testing. The officer did not attempt to secure a warrant. Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver’s license for one year and could be used against him in a future prosecution. McNeely nonetheless refused. The officer then directed a hospital lab technician to take a blood sample, and the sample was secured at approximately 2:35 a.m. Subsequent laboratory testing measured McNeely’s BAC at 0.154 percent, which was well above the legal limit of 0.08 percent.
McNeely was charged with driving while intoxicated (DWI). He moved to suppress the results of the blood test, arguing in relevant part that, under the circumstances, taking his blood for chemical testing without first obtaining a search warrant violated his rights under the Fourth Amendment. The trial court agreed. It concluded that the exigency exception to the warrant requirement did not apply because, apart from the fact that “[a]s in all cases involving intoxication, [McNeely’s] blood alcohol was being metabolized by his liver,” there were no circumstances suggesting the officer faced an emergency in which he could not practicably obtain a warrant. On appeal, the Missouri Court of Appeals stated an intention to reverse but transferred the case directly to the Missouri Supreme Court.
The Missouri Supreme Court affirmed. We granted certiorari to resolve a split of authority on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations. We now affirm.
A
[T]he warrant requirement is subject to exceptions. “One well-recognized exception,” and the one at issue in this case, “applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including law enforcement’s need to provide emergency assistance to an occupant of a home, engage in “hot pursuit” of a fleeing suspect, or enter a burning building to put out a fire and investigate its cause. As is relevant here, we have also recognized that in some circumstances law enforcement officers may conduct a search without a warrant to prevent the imminent destruction of evidence. While these contexts do not necessarily involve equivalent dangers, in each a warrantless search is potentially reasonable because “there is compelling need for official action and no time to secure a warrant.”
To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances. We apply this “finely tuned approach” to Fourth Amendment reasonableness in this context because the police action at issue lacks “the traditional justification that … a warrant … provides.” Absent that established justification, “the fact-specific nature of the reasonableness inquiry” demands that we evaluate each case of alleged exigency based “on its own facts and circumstances.”
Our decision in Schmerber applied this totality of the circumstances approach. In that case, the petitioner had suffered injuries in an automobile accident and was taken to the hospital. While he was there receiving treatment, a police officer arrested the petitioner for driving while under the influence of alcohol and ordered a blood test over his objection. After explaining that the warrant requirement applied generally to searches that intrude into the human body, we concluded that the warrantless blood test “in the present case” was nonetheless permissible because the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’”
In support of that conclusion, we observed that evidence could have been lost because “the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.” We added that “[p]articularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.” “Given these special facts,” we found that it was appropriate for the police to act without a warrant. We further held that the blood test at issue was a reasonable way to recover the evidence because it was highly effective, “involve[d] virtually no risk, trauma, or pain,” and was conducted in a reasonable fashion “by a physician in a hospital environment according to accepted medical practices.” And in conclusion, we noted that our judgment that there had been no Fourth Amendment violation was strictly based “on the facts of the present record.”
Thus, our analysis in Schmerber fits comfortably within our case law applying the exigent circumstances exception. In finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of the particular case and carefully based our holding on those specific facts.
B
The State properly recognizes that the reasonableness of a warrantless search under the exigency exception to the warrant requirement must be evaluated based on the totality of the circumstances. But the State nevertheless seeks a per se rule for blood testing in drunk-driving cases. The State contends that whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circumstances will necessarily exist because BAC evidence is inherently evanescent. As a result, the State claims that so long as the officer has probable cause and the blood test is conducted in a reasonable manner, it is categorically reasonable for law enforcement to obtain the blood sample without a warrant.
It is true that as a result of the human body’s natural metabolic processes, the alcohol level in a person’s blood begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated. This fact was essential to our holding in Schmerber, as we recognized that, under the circumstances, further delay in order to secure a warrant after the time spent investigating the scene of the accident and transporting the injured suspect to the hospital to receive treatment would have threatened the destruction of evidence.
But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect.
The context of blood testing is different in critical respects from other destruction-of-evidence cases in which the police are truly confronted with a “‘now or never’” situation. In contrast to, for example, circumstances in which the suspect has control over easily disposable evidence, BAC evidence from a drunk-driving suspect naturally dissipates over time in a gradual and relatively predictable manner. Moreover, because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant. This reality undermines the force of the State’s contention that we should recognize a categorical exception to the warrant requirement because BAC evidence “is actively being destroyed with every minute that passes.” Consider, for example, a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would be no plausible justification for an exception to the warrant requirement.
The State’s proposed per se rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple. We by no means claim that telecommunications innovations have, will, or should eliminate all delay from the warrant-application process. But technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge’s essential role as a check on police discretion, are relevant to an assessment of exigency. That is particularly so in this context, where BAC evidence is lost gradually and relatively predictably.
Of course, there are important countervailing concerns. While experts can work backwards from the BAC at the time the sample was taken to determine the BAC at the time of the alleged offense, longer intervals may raise questions about the accuracy of the calculation. For that reason, exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process. But adopting the State’s per se approach would improperly ignore the current and future technological developments in warrant procedures, and might well diminish the incentive for jurisdictions “to pursue progressive approaches to warrant acquisition that preserve the protections afforded by the warrant while meeting the legitimate interests of law enforcement.”
In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.
III
The remaining arguments advanced in support of a per se exigency rule are unpersuasive. The State and several of its amici, including the United States, express concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers deciding whether to conduct a blood test of a drunk-driving suspect without a warrant. While the desire for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake. Moreover, a case-by-case approach is hardly unique within our Fourth Amendment jurisprudence. Numerous police actions are judged based on fact-intensive, totality of the circumstances analyses rather than according to categorical rules, including in situations that are more likely to require police officers to make difficult split-second judgments.
Next, the State and the United States contend that the privacy interest implicated by blood draws of drunk-driving suspects is relatively minimal. That is so, they claim, both because motorists have a diminished expectation of privacy and because our cases have repeatedly indicated that blood testing is commonplace in society and typically involves “virtually no risk, trauma, or pain.”
But the fact that people are “accorded less privacy in … automobiles because of th[e] compelling governmental need for regulation,” does not diminish a motorist’s privacy interest in preventing an agent of the government from piercing his skin. As to the nature of a blood test conducted in a medical setting by trained personnel, it is concededly less intrusive than other bodily invasions we have found unreasonable. For that reason, we have held that medically drawn blood tests are reasonable in appropriate circumstances. We have never retreated, however, from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.
Finally, the State and its amici point to the compelling governmental interest in combating drunk driving and contend that prompt BAC testing, including through blood testing, is vital to pursuit of that interest. They argue that is particularly so because, in addition to laws that make it illegal to operate a motor vehicle under the influence of alcohol, all 50 States and the District of Columbia have enacted laws that make it per se unlawful to operate a motor vehicle with a BAC of over 0.08 percent. “No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it.” Certainly we do not. While some progress has been made, drunk driving continues to exact a terrible toll on our society.
But the general importance of the government’s interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case. To the extent that the State and its amici contend that applying the traditional Fourth Amendment totality-of-the-circumstances analysis to determine whether an exigency justified a warrantless search will undermine the governmental interest in preventing and prosecuting drunk-driving offenses, we are not convinced.
States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense. Such laws impose significant consequences when a motorist withdraws consent; typically the motorist’s driver’s license is immediately suspended or revoked, and most States allow the motorist’s refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution.
IV
The State argued before this Court that the fact that alcohol is naturally metabolized by the human body creates an exigent circumstance in every case. The State did not argue that there were exigent circumstances in this particular case because a warrant could not have been obtained within a reasonable amount of time. In his testimony before the trial court, the arresting officer did not identify any other factors that would suggest he faced an emergency or unusual delay in securing a warrant. He testified that he made no effort to obtain a search warrant before conducting the blood draw even though he was “sure” a prosecuting attorney was on call and even though he had no reason to believe that a magistrate judge would have been unavailable. The officer also acknowledged that he had obtained search warrants before taking blood samples in the past without difficulty. He explained that he elected to forgo a warrant application in this case only because he believed it was not legally necessary to obtain a warrant. Based on this testimony, the trial court concluded that there was no exigency and specifically found that, although the arrest took place in the middle of the night, “a prosecutor was readily available to apply for a search warrant and a judge was readily available to issue a warrant.”
The Missouri Supreme Court in turn affirmed that judgment, holding first that the dissipation of alcohol did not establish a per se exigency, and second that the State could not otherwise satisfy its burden of establishing exigent circumstances. In petitioning for certiorari to this Court, the State challenged only the first holding; it did not separately contend that the warrantless blood test was reasonable regardless of whether the natural dissipation of alcohol in a suspect’s blood categorically justifies dispensing with the warrant requirement.
Here and in its own courts the State based its case on an insistence that a driver who declines to submit to testing after being arrested for driving under the influence of alcohol is always subject to a nonconsensual blood test without any precondition for a warrant. That is incorrect.
Although the Missouri Supreme Court referred to this case as “unquestionably a routine DWI case,” the fact that a particular drunk-driving stop is “routine” in the sense that it does not involve “‘special facts,’” such as the need for the police to attend to a car accident, does not mean a warrant is required. Other factors present in an ordinary traffic stop, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can obtain a warrant in an expeditious way and therefore may establish an exigency that permits a warrantless search. The relevant factors in determining whether a warrantless search is reasonable, including the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence, will no doubt vary depending upon the circumstances in the case.
Because this case was argued on the broad proposition that drunk-driving cases present a per se exigency, the arguments and the record do not provide the Court with an adequate analytic framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required. No doubt, given the large number of arrests for this offense in different jurisdictions nationwide, cases will arise when anticipated delays in obtaining a warrant will justify a blood test without judicial authorization, for in every case the law must be concerned that evidence is being destroyed. But that inquiry ought not to be pursued here where the question is not properly before this Court. Having rejected the sole argument presented to us challenging the Missouri Supreme Court’s decision, we affirm its judgment.
We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.
The judgment of the Missouri Supreme Court is affirmed.
Chief Justice ROBERTS, with whom Justice BREYER and Justice ALITO join, concurring in part and dissenting in part
[Chief Justice Roberts would have provided more robust guidance to law enforcement about precisely when warrantless nonconsensual blood draws are allowed. He wrote:
“A police officer reading this Court’s opinion would have no idea—no idea—what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test. I have no quarrel with the Court’s ‘totality of the circumstances’ approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.”
“In my view, the proper rule is straightforward. Our cases establish that there is an exigent circumstances exception to the warrant requirement. That exception applies when there is a compelling need to prevent the imminent destruction of important evidence, and there is no time to obtain a warrant. The natural dissipation of alcohol in the bloodstream constitutes not only the imminent but ongoing destruction of critical evidence. That would qualify as an exigent circumstance, except that there may be time to secure a warrant before blood can be drawn. If there is, an officer must seek a warrant. If an officer could reasonably conclude that there is not, the exigent circumstances exception applies by its terms, and the blood may be drawn without a warrant.”1]
Justice THOMAS, dissenting.
[Justice Thomas argued, “Because the body’s natural metabolization of alcohol inevitably destroys evidence of the crime, it constitutes an exigent circumstance. As a result, I would hold that a warrantless blood draw does not violate the Fourth Amendment.” He noted that all parties agreed about the “rapid destruction of evidence” that “occurs in every situation where police have probable cause to arrest a drunk driver.” He offered an evocative hypothetical:
“Officers are watching a warehouse and observe a worker carrying bundles from the warehouse to a large bonfire and throwing them into the blaze. The officers have probable cause to believe the bundles contain marijuana. Because there is only one person carrying the bundles, the officers believe it will take hours to completely destroy the drugs. During that time the officers likely could obtain a warrant. But it is clear that the officers need not sit idly by and watch the destruction of evidence while they wait for a warrant.”]
* * *
The McNeely Court noted that to help enforce laws against drunk driving, states have enacted laws requiring drivers to submit to blood-alcohol tests in certain situations. Failure to submit to the test can lead to revocation of a driver’s license even if the driver is never proven in court to have driven under the influence. In Birchfield v. North Dakota, the Court considered a particularly punitive state law that—had it survived constitutional scrutiny—could have undermined the Court’s holding in McNeely.
Supreme Court of the United States
Danny Birchfield v. North Dakota
Decided June 23, 2016 – 136 S. Ct. 2160
Justice ALITO delivered the opinion of the Court.
Drunk drivers take a grisly toll on the Nation’s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year. To fight this problem, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) that exceeds a specified level. But determining whether a driver’s BAC is over the legal limit requires a test, and many drivers stopped on suspicion of drunk driving would not submit to testing if given the option. So every State also has long had what are termed “implied consent laws.” These laws impose penalties on motorists who refuse to undergo testing when there is sufficient reason to believe they are violating the State’s drunk-driving laws.
In the past, the typical penalty for noncompliance was suspension or revocation of the motorist’s license. The cases now before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired. The question presented is whether such laws violate the Fourth Amendment’s prohibition against unreasonable searches.
I
Because the cooperation of the test subject is necessary when a breath test is administered and highly preferable when a blood sample is taken, the enactment of laws defining intoxication based on BAC made it necessary for States to find a way of securing such cooperation. So-called “implied consent” laws were enacted to achieve this result. They provided that cooperation with BAC testing was a condition of the privilege of driving on state roads and that the privilege would be rescinded if a suspected drunk driver refused to honor that condition. The first such law was enacted by New York in 1953, and many other States followed suit not long thereafter. In 1962, the Uniform Vehicle Code also included such a provision. Today, “all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense.” Suspension or revocation of the motorist’s driver’s license remains the standard legal consequence of refusal. In addition, evidence of the motorist’s refusal is admitted as evidence of likely intoxication in a drunk-driving prosecution.
In recent decades, the States and the Federal Government have toughened drunk-driving laws, and those efforts have corresponded to a dramatic decrease in alcohol-related fatalities. As of the early 1980’s, the number of annual fatalities averaged 25,000; by 2014, the most recent year for which statistics are available, the number had fallen to below 10,000. One legal change has been further lowering the BAC standard from 0.10% to 0.08%. In addition, many States now impose increased penalties for recidivists and for drivers with a BAC level that exceeds a higher threshold. In North Dakota, for example, the standard penalty for first-time drunk-driving offenders is license suspension and a fine. But an offender with a BAC of 0.16% or higher must spend at least two days in jail. In addition, the State imposes increased mandatory minimum sentences for drunk-driving recidivists.
Many other States have taken a similar approach, but this new structure threatened to undermine the effectiveness of implied consent laws. If the penalty for driving with a greatly elevated BAC or for repeat violations exceeds the penalty for refusing to submit to testing, motorists who fear conviction for the more severely punished offenses have an incentive to reject testing. And in some States, the refusal rate is high. On average, over one-fifth of all drivers asked to submit to BAC testing in 2011 refused to do so. In North Dakota, the refusal rate for 2011 was a representative 21%.
To combat the problem of test refusal, some States have begun to enact laws making it a crime to refuse to undergo testing. North Dakota adopted a similar law, in 2013, after a pair of drunk-driving accidents claimed the lives of an entire young family and another family’s 5- and 9-year-old boys. The Federal Government also encourages this approach as a means for overcoming the incentive that drunk drivers have to refuse a test.
II
Petitioner Danny Birchfield accidentally drove his car off a North Dakota highway on October 10, 2013. A state trooper arrived and watched as Birchfield unsuccessfully tried to drive back out of the ditch in which his car was stuck. The trooper approached, caught a strong whiff of alcohol, and saw that Birchfield’s eyes were bloodshot and watery. Birchfield spoke in slurred speech and struggled to stay steady on his feet. At the trooper’s request, Birchfield agreed to take several field sobriety tests and performed poorly on each. He had trouble reciting sections of the alphabet and counting backwards in compliance with the trooper’s directions.
Believing that Birchfield was intoxicated, the trooper informed him of his obligation under state law to agree to a BAC test. Birchfield consented to a roadside breath test. The device used for this sort of test often differs from the machines used for breath tests administered in a police station and is intended to provide a preliminary assessment of the driver’s BAC. Because the reliability of these preliminary or screening breath tests varies, many jurisdictions do not permit their numerical results to be admitted in a drunk-driving trial as evidence of a driver’s BAC. In North Dakota, results from this type of test are “used only for determining whether or not a further test shall be given.” In Birchfield’s case, the screening test estimated that his BAC was 0.254%, more than three times the legal limit of 0.08%.
The state trooper arrested Birchfield for driving while impaired, gave the usual Miranda warnings, again advised him of his obligation under North Dakota law to undergo BAC testing, and informed him, as state law requires that refusing to take the test would expose him to criminal penalties. In addition to mandatory addiction treatment, sentences range from a mandatory fine of \$500 (for first-time offenders) to fines of at least \$2,000 and imprisonment of at least one year and one day (for serial offenders). These criminal penalties apply to blood, breath, and urine test refusals alike.
Although faced with the prospect of prosecution under this law, Birchfield refused to let his blood be drawn. Just three months before, Birchfield had received a citation for driving under the influence, and he ultimately pleaded guilty to that offense. This time he also pleaded guilty—to a misdemeanor violation of the refusal statute—but his plea was a conditional one: while Birchfield admitted refusing the blood test, he argued that the Fourth Amendment prohibited criminalizing his refusal to submit to the test. The State District Court rejected this argument and imposed a sentence that accounted for his prior conviction. The sentence included 30 days in jail (20 of which were suspended and 10 of which had already been served), 1 year of unsupervised probation, \$1,750 in fine and fees, and mandatory participation in a sobriety program and in a substance abuse evaluation.
On appeal, the North Dakota Supreme Court affirmed. The court found support for the test refusal statute in this Court’s McNeely plurality opinion, which had spoken favorably about “acceptable ‘legal tools’ with ‘significant consequences’ for refusing to submit to testing.”
We granted certiorari in order to decide whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring the alcohol in their bloodstream.
III
[S]uccess for [] petitioner[] depends on the proposition that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate. If, on the other hand, such warrantless searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant. And by the same token, if such warrantless searches are constitutional, there is no obstacle under federal law to the admission of the results that they yield in either a criminal prosecution or a civil or administrative proceeding. We therefore begin by considering whether the searches demanded in these cases were consistent with the Fourth Amendment.
IV
The [Fourth] Amendment [] prohibits “unreasonable searches,” and our cases establish that the taking of a blood sample or the administration of a breath test is a search. The question, then, is whether the warrantless searches at issue here were reasonable. “[T]he text of the Fourth Amendment does not specify when a search warrant must be obtained.” But “this Court has inferred that a warrant must [usually] be secured.” This usual requirement, however, is subject to a number of exceptions.
We have previously had occasion to examine whether one such exception—for “exigent circumstances”—applies in drunk-driving investigations. In Schmerber v. California, we held that drunk driving may present such an exigency. More recently, though, we have held that the natural dissipation of alcohol from the bloodstream does not always constitute an exigency justifying the warrantless taking of a blood sample. While emphasizing that the exigent-circumstances exception must be applied on a case-by-case basis, the [Missouri v.] McNeely Court noted that other exceptions to the warrant requirement “apply categorically” rather than in a “case-specific” fashion. One of these, as the McNeely opinion recognized, is the long-established rule that a warrantless search may be conducted incident to a lawful arrest. But the Court pointedly did not address any potential justification for warrantless testing of drunk-driving suspects except for the exception “at issue in th[e] case,” namely, the exception for exigent circumstances.
In the [] case[] now before us, the driver[] w[as] [] told that [he was] required to submit to a search after being placed under arrest for drunk driving. We therefore consider how the search-incident-to-arrest doctrine applies to breath and blood tests incident to such arrests.
V
Blood and breath tests to measure blood alcohol concentration are not as new as searches of cell phones, but here, as in Riley [v. California], the founding era does not provide any definitive guidance as to whether they should be allowed incident to arrest. Lacking such guidance, we engage in the same mode of analysis as in Riley: we examine “the degree to which [they] intrud[e] upon an individual’s privacy and … the degree to which [they are] needed for the promotion of legitimate governmental interests.’” We begin by considering the impact of breath and blood tests on individual privacy interests, and we will discuss each type of test in turn.
Years ago we said that breath tests do not “implicat[e] significant privacy concerns.” That remains so today. First, the physical intrusion is almost negligible. Breath tests “do not require piercing the skin” and entail “a minimum of inconvenience.” The effort is no more demanding than blowing up a party balloon.
In prior cases, we have upheld warrantless searches involving physical intrusions that were at least as significant as that entailed in the administration of a breath test. Just recently we described the process of collecting a DNA sample by rubbing a swab on the inside of a person’s cheek as a “negligible” intrusion. We have also upheld scraping underneath a suspect’s fingernails to find evidence of a crime, calling that a “very limited intrusion.” A breath test is no more intrusive than either of these procedures.
Second, breath tests are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath. In this respect, they contrast sharply with the sample of cells collected by the swab in Maryland v. King [, 569 U.S. 435 (2013)]. Although the DNA obtained under the law at issue in that case could lawfully be used only for identification purposes, the process put into the possession of law enforcement authorities a sample from which a wealth of additional, highly personal information could potentially be obtained. A breath test, by contrast, results in a BAC reading on a machine, nothing more. No sample of anything is left in the possession of the police.
Finally, participation in a breath test is not an experience that is likely to cause any great enhancement in the embarrassment that is inherent in any arrest. The act of blowing into a straw is not inherently embarrassing, nor are evidentiary breath tests administered in a manner that causes embarrassment. Again, such tests are normally administered in private at a police station, in a patrol car, or in a mobile testing facility, out of public view. Moreover, once placed under arrest, the individual’s expectation of privacy is necessarily diminished. For all these reasons, “[a] breath test does not “implicat[e] significant privacy concerns.”
Blood tests are a different matter. They “require piercing the skin” and extract a part of the subject’s body. And while humans exhale air from their lungs many times per minute, humans do not continually shed blood. It is true, of course, that people voluntarily submit to the taking of blood samples as part of a physical examination, and the process involves little pain or risk. Nevertheless, for many, the process is not one they relish. It is significantly more intrusive than blowing into a tube. Perhaps that is why many States’ implied consent laws specifically prescribe that breath tests be administered in the usual drunk-driving case instead of blood tests or give motorists a measure of choice over which test to take.
In addition, a blood test, unlike a breath test, places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. Even if the law enforcement agency is precluded from testing the blood for any purpose other than to measure BAC, the potential remains and may result in anxiety for the person tested.
Having assessed the impact of breath and blood testing on privacy interests, we now look to the States’ asserted need to obtain BAC readings for persons arrested for drunk driving.
The States and the Federal Government have a “paramount interest … in preserving the safety of … public highways.” Although the number of deaths and injuries caused by motor vehicle accidents has declined over the years, the statistics are still staggering.
Alcohol consumption is a leading cause of traffic fatalities and injuries. During the past decade, annual fatalities in drunk-driving accidents ranged from 13,582 deaths in 2005 to 9,865 deaths in 2011. The most recent data report a total of 9,967 such fatalities in 2014—on average, one death every 53 minutes. Our cases have long recognized the “carnage” and “slaughter” caused by drunk drivers.
To deter potential drunk drivers and thereby reduce alcohol-related injuries, the States and the Federal Government have taken the series of steps that we recounted earlier. The law[] at issue in the present cases—which make it a crime to refuse to submit to a BAC test—are designed to provide an incentive to cooperate in such cases, and we conclude that they serve a very important function.
Petitioner[] contend[s] that the States and the Federal Government could combat drunk driving in other ways that do not have the same impact on personal privacy. [His] argument[] [is] unconvincing.
The chief argument on this score is that an officer making an arrest for drunk driving should not be allowed to administer a BAC test unless the officer procures a search warrant or could not do so in time to obtain usable test results.
This argument contravenes our decisions holding that the legality of a search incident to arrest must be judged on the basis of categorical rules.
Petitioners next suggest[s] that requiring a warrant for BAC testing in every case in which a motorist is arrested for drunk driving would not impose any great burden on the police or the courts. But of course the same argument could be made about searching through objects found on the arrestee’s possession, which our cases permit even in the absence of a warrant. What about the cigarette package in [United States v.] Robinson? What if a motorist arrested for drunk driving has a flask in his pocket? What if a motorist arrested for driving while under the influence of marijuana has what appears to be a marijuana cigarette on his person? What about an unmarked bottle of pills?
If a search warrant were required for every search incident to arrest that does not involve exigent circumstances, the courts would be swamped. And even if we arbitrarily singled out BAC tests incident to arrest for this special treatment, the impact on the courts would be considerable. The number of arrests every year for driving under the influence is enormous—more than 1.1 million in 2014. Particularly in sparsely populated areas, it would be no small task for courts to field a large new influx of warrant applications that could come on any day of the year and at any hour. In many jurisdictions, judicial officers have the authority to issue warrants only within their own districts, and in rural areas, some districts may have only a small number of judicial officers.
North Dakota, for instance, has only 51 state district judges spread across eight judicial districts. Those judges are assisted by 31 magistrates, and there are no magistrates in 20 of the State’s 53 counties. At any given location in the State, then, relatively few state officials have authority to issue search warrants. Yet the State, with a population of roughly 740,000, sees nearly 7,000 drunk-driving arrests each year. With a small number of judicial officers authorized to issue warrants in some parts of the State, the burden of fielding BAC warrant applications 24 hours per day, 365 days of the year would not be the light burden that petitioner[] suggest[s].
In light of this burden and our prior search-incident-to-arrest precedents, petitioner[] would at a minimum have to show some special need for warrants for BAC testing. It is therefore appropriate to consider the benefits that such applications would provide. Search warrants protect privacy in two main ways. First, they ensure that a search is not carried out unless a neutral magistrate makes an independent determination that there is probable cause to believe that evidence will be found. Second, if the magistrate finds probable cause, the warrant limits the intrusion on privacy by specifying the scope of the search—that is, the area that can be searched and the items that can be sought.
How well would these functions be performed by the warrant applications that petitioners propose? In order to persuade a magistrate that there is probable cause for a search warrant, the officer would typically recite the same facts that led the officer to find that there was probable cause for arrest, namely, that there is probable cause to believe that a BAC test will reveal that the motorist’s blood alcohol level is over the limit. [T]he facts that establish probable cause are largely the same from one drunk-driving stop to the next and consist largely of the officer’s own characterization of his or her observations—for example, that there was a strong odor of alcohol, that the motorist wobbled when attempting to stand, that the motorist paused when reciting the alphabet or counting backwards, and so on. A magistrate would be in a poor position to challenge such characterizations.
As for the second function served by search warrants—delineating the scope of a search—the warrants in question here would not serve that function at all. In every case the scope of the warrant would simply be a BAC test of the arrestee. For these reasons, requiring the police to obtain a warrant in every case would impose a substantial burden but no commensurate benefit.
Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great.
We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant.
Neither respondents nor their amici dispute the effectiveness of breath tests in measuring BAC. Breath tests have been in common use for many years. Their results are admissible in court and are widely credited by juries, and respondents do not dispute their accuracy or utility. What, then, is the justification for warrantless blood tests?
One advantage of blood tests is their ability to detect not just alcohol but also other substances that can impair a driver’s ability to operate a car safely. A breath test cannot do this, but police have other measures at their disposal when they have reason to believe that a motorist may be under the influence of some other substance (for example, if a breath test indicates that a clearly impaired motorist has little if any alcohol in his blood). Nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular circumstances or from relying on the exigent circumstances exception to the warrant requirement when there is not.
A blood test also requires less driver participation than a breath test. In order for a technician to take a blood sample, all that is needed is for the subject to remain still, either voluntarily or by being immobilized. Thus, it is possible to extract a blood sample from a subject who forcibly resists, but many States reasonably prefer not to take this step. North Dakota, for example, tells us that it generally opposes this practice because of the risk of dangerous altercations between police officers and arrestees in rural areas where the arresting officer may not have backup. Under current North Dakota law, only in cases involving an accident that results in death or serious injury may blood be taken from arrestees who resist.
It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.
A breath test may also be ineffective if an arrestee deliberately attempts to prevent an accurate reading by failing to blow into the tube for the requisite length of time or with the necessary force. But courts have held that such conduct qualifies as a refusal to undergo testing and it may be prosecuted as such. And again, a warrant for a blood test may be sought.
Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.
VI
Having concluded that the search incident to arrest doctrine does not justify the warrantless taking of a blood sample, we must address respondents’ alternative argument that such tests are justified based on the driver’s legally implied consent to submit to them. It is well established that a search is reasonable when the subject consents, and that sometimes consent to a search need not be express but may be fairly inferred from context. Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. Petitioner[] do[es] not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.
It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.
Respondents and their amici all but concede this point. North Dakota emphasizes that its law makes refusal a misdemeanor and suggests that laws punishing refusal more severely would present a different issue. Borrowing from our Fifth Amendment jurisprudence, the United States suggests that motorists could be deemed to have consented to only those conditions that are “reasonable” in that they have a “nexus” to the privilege of driving and entail penalties that are proportional to severity of the violation. But in the Fourth Amendment setting, this standard does not differ in substance from the one that we apply, since reasonableness is always the touchstone of Fourth Amendment analysis. And applying this standard, we conclude that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.
VII
Our remaining task is to apply our legal conclusions to the [] case[] before us.
Petitioner Birchfield was criminally prosecuted for refusing a warrantless blood draw, and therefore the search he refused cannot be justified as a search incident to his arrest or on the basis of implied consent. There is no indication in the record or briefing that a breath test would have failed to satisfy the State’s interests in acquiring evidence to enforce its drunk-driving laws against Birchfield. And North Dakota has not presented any case-specific information to suggest that the exigent circumstances exception would have justified a warrantless search. Unable to see any other basis on which to justify a warrantless test of Birchfield’s blood, we conclude that Birchfield was threatened with an unlawful search and that the judgment affirming his conviction must be reversed.
We accordingly reverse the judgment of the North Dakota Supreme Court and remand the case for further proceedings not inconsistent with this opinion.
Justice THOMAS, concurring in judgment in part and dissenting in part.
The compromise the Court reaches today is not a good one. By deciding that some (but not all) warrantless tests revealing the blood alcohol concentration (BAC) of an arrested driver are constitutional, the Court contorts the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement. The far simpler answer to the question presented is the one rejected in Missouri v. McNeely. Here, the tests revealing the BAC of a driver suspected of driving drunk are constitutional under the exigent-circumstances exception to the warrant requirement.
I
Today’s decision chips away at a well-established exception to the warrant requirement. Until recently, we have admonished that “[a] police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search.” Under our precedents, a search incident to lawful arrest “require[d] no additional justification.” Not until the recent decision in Riley v. California, did the Court begin to retreat from this categorical approach because it feared that the search at issue, the “search of the information on a cell phone,” bore “little resemblance to the type of brief physical search” contemplated by this Court’s past search-incident-to-arrest decisions. I joined Riley, however, because the Court resisted the temptation to permit searches of some kinds of cellphone data and not others and instead asked more generally whether that entire “category of effects” was searchable without a warrant.
Today’s decision begins where Riley left off. The Court purports to apply Robinson but further departs from its categorical approach by holding that warrantless breath tests to prevent the destruction of BAC evidence are constitutional searches incident to arrest, but warrantless blood tests are not. That hairsplitting makes little sense. Either the search-incident-to-arrest exception permits bodily searches to prevent the destruction of BAC evidence, or it does not.
The Court justifies its result—an arbitrary line in the sand between blood and breath tests—by balancing the invasiveness of the particular type of search against the government’s reasons for the search. Such case-by-case balancing is bad for the People, who “through ratification, have already weighed the policy tradeoffs that constitutional rights entail.” It is also bad for law enforcement officers, who depend on predictable rules to do their job, as Members of this Court have exhorted in the past.
Today’s application of the search-incident-to-arrest exception is bound to cause confusion in the lower courts. The Court’s choice to allow some (but not all) BAC searches is undeniably appealing, for it both reins in the pernicious problem of drunk driving and also purports to preserve some Fourth Amendment protections. But that compromise has little support under this Court’s existing precedents.
II
The better (and far simpler) way to resolve these cases is by applying the per se rule that I proposed in McNeely. Under that approach, both warrantless breath and blood tests are constitutional because “the natural metabolization of [BAC] creates an exigency once police have probable cause to believe the driver is drunk. It naturally follows that police may conduct a search in these circumstances.”
Today’s decision rejects McNeely’s arbitrary distinction between the destruction of evidence generally and the destruction of BAC evidence. But only for searches incident to arrest. The Court declares that such a distinction “between an arrestee’s active destruction of evidence and the loss of evidence due to a natural process makes little sense.” I agree. But it also “makes little sense” for the Court to reject McNeely’s arbitrary distinction only for searches incident to arrest and not also for exigent-circumstances searches when both are justified by identical concerns about the destruction of the same evidence. McNeely’s distinction is no less arbitrary for searches justified by exigent circumstances than those justified by search incident to arrest.
The Court was wrong in McNeely, and today’s compromise is perhaps an inevitable consequence of that error. Both searches contemplated by the state laws at issue in these cases would be constitutional under the exigent-circumstances exception to the warrant requirement. I respectfully concur in the judgment in part and dissent in part.
Notes, Comments, and Questions
The Court in Birchfield holds implied blood-draw consent laws that result in criminal prosecution unconstitutional. What result if the implied consent law results in an administrative (rather than criminal) penalty? For example, suppose a state’s implied consent law requires drivers arrested for drunk driving to consent to a breathalyzer, blood draw, saliva or urine analysis or have their license administratively revoked for one year. See, e.g., 577.020, RSMo (2016).
In Mitchell v. Wisconsin, 139 S. Ct 2525 (2019), the Court issued a plurality opinion affirming the legality of a warrantless blood draw conducted by police after a suspect became unconscious. The plurality opinion—approved by four Justices—stated that when a driver is unconscious and cannot submit to a breath test, police may perform a blood draw under the exigent circumstances exception to the warrant requirement. The opinion relied upon Schmerber v. California, Missouri v. McNeely, and Birchfield. Justice Thomas, concurring in the judgment, would have held that the natural metabolism of alcohol by the human body always creates a per se exigency “once police have probable cause to believe the driver is drunk.” Four Justices dissented, in two separate opinions.
Like the preceding cases, Welsh v. Wisconsin involves police investigation of drunk driving and an argument about whether the exigent circumstances exception justifies certain police activity. The key difference here is that instead of seeking to take a suspect’s blood, the police in Welsh sought to enter his home to arrest him. In addition, this case illustrates the far more relaxed attitude toward drunk driving that was common among judges and legislators in the 1980s.
Supreme Court of the United States
Edward G. Welsh v. Wisconsin
Decided May 15, 1984 – 466 U.S. 740
Justice BRENNAN delivered the opinion of the Court.
Payton v. New York, 445 U.S. 573 (1980), held that, absent probable cause and exigent circumstances, warrantless arrests in the home are prohibited by the Fourth Amendment. But the Court in that case explicitly refused “to consider the sort of emergency or dangerous situation, described in our cases as ‘exigent circumstances,’ that would justify a warrantless entry into a home for the purpose of either arrest or search.” Certiorari was granted in this case to decide at least one aspect of the unresolved question: whether, and if so under what circumstances, the Fourth Amendment prohibits the police from making a warrantless night entry of a person’s home in order to arrest him for a nonjailable traffic offense.
A
Shortly before 9 o’clock on the rainy night of April 24, 1978, a lone witness, Randy Jablonic, observed a car being driven erratically. After changing speeds and veering from side to side, the car eventually swerved off the road and came to a stop in an open field. No damage to any person or property occurred. Concerned about the driver and fearing that the car would get back on the highway, Jablonic drove his truck up behind the car so as to block it from returning to the road. Another passerby also stopped at the scene, and Jablonic asked her to call the police. Before the police arrived, however, the driver of the car emerged from his vehicle, approached Jablonic’s truck, and asked Jablonic for a ride home. Jablonic instead suggested that they wait for assistance in removing or repairing the car. Ignoring Jablonic’s suggestion, the driver walked away from the scene.
A few minutes later, the police arrived and questioned Jablonic. He told one officer what he had seen, specifically noting that the driver was either very inebriated or very sick. The officer checked the motor vehicle registration of the abandoned car and learned that it was registered to the petitioner, Edward G. Welsh. In addition, the officer noted that the petitioner’s residence was a short distance from the scene, and therefore easily within walking distance.
Without securing any type of warrant, the police proceeded to the petitioner’s home, arriving about 9 p.m. When the petitioner’s stepdaughter answered the door, the police gained entry into the house.2 Proceeding upstairs to the petitioner’s bedroom, they found him lying naked in bed. At this point, the petitioner was placed under arrest for driving or operating a motor vehicle while under the influence of an intoxicant. The petitioner was taken to the police station, where he refused to submit to a breath-analysis test.
B
As a result of these events, the petitioner was subjected to two separate but related proceedings: one concerning his refusal to submit to a breath test and the other involving the alleged code violation for driving while intoxicated. Under the Wisconsin Vehicle Code in effect in April 1978, one arrested for driving while intoxicated [] could be requested by a law enforcement officer to provide breath, blood, or urine samples for the purpose of determining the presence or quantity of alcohol. If such a request was made, the arrestee was required to submit to the appropriate testing or risk a revocation of operating privileges … for 60 days.
C
[T]he State filed a criminal complaint against the petitioner for driving while intoxicated. The petitioner responded by filing a motion to dismiss the complaint, relying on his contention that the underlying arrest was invalid. After receiving evidence at a hearing on this motion in July 1980, the trial court concluded that the criminal complaint would not be dismissed because the existence of both probable cause and exigent circumstances justified the warrantless arrest. [T]he appellate court concluded that the warrantless arrest of the petitioner in his home violated the Fourth Amendment because the State, although demonstrating probable cause to arrest, had not established the existence of exigent circumstances. The Supreme Court of Wisconsin in turn reversed the Court of Appeals. Because of the important Fourth Amendment implications of the decision below, we granted certiorari.
II
[T]he Court decided in Payton v. New York that warrantless felony arrests in the home are prohibited by the Fourth Amendment, absent probable cause and exigent circumstances. At the same time, the Court declined to consider the scope of any exception for exigent circumstances that might justify warrantless home arrests, thereby leaving to the lower courts the initial application of the exigent-circumstances exception. Prior decisions of this Court, however, have emphasized that exceptions to the warrant requirement are “few in number and carefully delineated” and that the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests. Indeed, the Court has recognized only a few such emergency conditions.
Our hesitation in finding exigent circumstances, especially when warrantless arrests in the home are at issue, is particularly appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. When the government’s interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.
We [] conclude that the common-sense approach utilized by most lower courts is required by the Fourth Amendment prohibition on “unreasonable searches and seizures,” and hold that an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. Moreover, although no exigency is created simply because there is probable cause to believe that a serious crime has been committed, application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense, such as the kind at issue in this case, has been committed.
Application of this principle to the facts of the present case is relatively straightforward. The petitioner was arrested in the privacy of his own bedroom for a noncriminal, traffic offense. The State attempts to justify the arrest by relying on the hot-pursuit doctrine, on the threat to public safety, and on the need to preserve evidence of the petitioner’s blood-alcohol level. On the facts of this case, however, the claim of hot pursuit is unconvincing because there was no immediate or continuous pursuit of the petitioner from the scene of a crime. Moreover, because the petitioner had already arrived home, and had abandoned his car at the scene of the accident, there was little remaining threat to the public safety. Hence, the only potential emergency claimed by the State was the need to ascertain the petitioner’s blood-alcohol level.
Even assuming, however, that the underlying facts would support a finding of this exigent circumstance, mere similarity to other cases involving the imminent destruction of evidence is not sufficient. The State of Wisconsin has chosen to classify the first offense for driving while intoxicated as a noncriminal, civil forfeiture offense for which no imprisonment is possible. This is the best indication of the State’s interest in precipitating an arrest, and is one that can be easily identified both by the courts and by officers faced with a decision to arrest. Given this expression of the State’s interest, a warrantless home arrest cannot be upheld simply because evidence of the petitioner’s blood-alcohol level might have dissipated while the police obtained a warrant. To allow a warrantless home entry on these facts would be to approve unreasonable police behavior that the principles of the Fourth Amendment will not sanction.
III
The Supreme Court of Wisconsin let stand a warrantless, nighttime entry into the petitioner’s home to arrest him for a civil traffic offense. Such an arrest, however, is clearly prohibited by the special protection afforded the individual in his home by the Fourth Amendment. The petitioner’s arrest was therefore invalid, the judgment of the Supreme Court of Wisconsin is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
Justice BLACKMUN, concurring.
I join the Court’s opinion but add a personal observation.
I yield to no one in my profound personal concern about the unwillingness of our national consciousness to face up to—and to do something about—the continuing slaughter upon our Nation’s highways, a good percentage of which is due to drivers who are drunk or semi-incapacitated because of alcohol or drug ingestion. I have spoken in these Reports to this point before. And it is amazing to me that one of our great States—one which, by its highway signs, proclaims to be diligent and emphatic in its prosecution of the drunken driver—still classifies driving while intoxicated as a civil violation that allows only a money forfeiture of not more than \$300 so long as it is a first offense. The State, like the indulgent parent, hesitates to discipline the spoiled child very much, even though the child is engaging in an act that is dangerous to others who are law abiding and helpless in the face of the child’s act. Our personal convenience still weighs heavily in the balance, and the highway deaths and injuries continue. But if Wisconsin and other States choose by legislation thus to regulate their penalty structure, there is, unfortunately, nothing in the United States Constitution that says they may not do so.
Notes, Comments, and Questions
In 1984, the Court prohibited police from entering a house to arrest an apparently intoxicated man who had recently driven his car off the road and stumbled home. In 2016, the Court allowed states to demand—under threat of criminal prosecution—that motorists arrested for drunk driving submit to breath tests. The home entry was “unreasonable,” and demanding the breath test is “reasonable.”
Perhaps the results can be explained by Fourth Amendment doctrine that has remained constant since 1791. Students might also consider, however, that the decisions could result in part on changing attitudes toward drunk driving. What was a noncriminal violation in Wisconsin in the 1980s is now punished far more severely across the nation. The position articulated by Justice Blackmun in his dissent in Welsh, in which he chastised Wisconsin for its lax treatment of drunken drivers, has won widespread appeal among lawmakers, both those on the bench and those in legislatures. Mothers Against Drunk Driving, founded in 1980 after the founder’s daughter was killed in a crash involving a drunk driver, won important legislative victories beginning in 1984, when Congress acted to force states to raise their drinking ages to 21 years.3 | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.12%3A_Chapter_13_-_The_Warrant_Requirement-_Exceptions_%28Part_5%29.txt |
THE FOURTH AMENDMENT
Warrant Exception: Ports of Entry
When persons and items enter the United States from abroad, agents of the executive enjoy expansive authority to conduct searches and seizures without a warrant. The Court has repeatedly chosen to provide relatively little judicial oversight of the executive’s use of that authority, especially when compared to oversight of common domestic policing.
We begin with the Court’s approval of routine searches at the California-Mexico border. No quantum of evidence (or suspicion) is needed.
Supreme Court of the United States
United States v. Manuel Flores-Montano
Decided March 30, 2004 – 541 U.S. 149
Chief Justice REHNQUIST delivered the opinion of the [unanimous] Court.
Customs officials seized 37 kilograms—a little more than 81 pounds—of marijuana from respondent Manuel Flores-Montano’s gas tank at the international border. The Court of Appeals for the Ninth Circuit, relying on an earlier decision by a divided panel of that court, held that the Fourth Amendment forbade the fuel tank search absent reasonable suspicion. We hold that the search in question did not require reasonable suspicion.
Respondent, driving a 1987 Ford Taurus station wagon, attempted to enter the United States at the Otay Mesa Port of Entry in southern California. A customs inspector conducted an inspection of the station wagon, and requested respondent to leave the vehicle. The vehicle was then taken to a secondary inspection station.
At the secondary station, a second customs inspector inspected the gas tank by tapping it, and noted that the tank sounded solid. Subsequently, the inspector requested a mechanic under contract with Customs to come to the border station to remove the tank. Within 20 to 30 minutes, the mechanic arrived. He raised the car on a hydraulic lift, loosened the straps and unscrewed the bolts holding the gas tank to the undercarriage of the vehicle, and then disconnected some hoses and electrical connections. After the gas tank was removed, the inspector hammered off bondo (a putty-like hardening substance that is used to seal openings) from the top of the gas tank. The inspector opened an access plate underneath the bondo and found 37 kilograms of marijuana bricks. The process took 15 to 25 minutes.
A grand jury indicted respondent on one count of unlawfully importing marijuana and one count of possession of marijuana with intent to distribute. Relying on [Ninth Circuit precedent], the Court of Appeals held, inter alia, that removal of a gas tank requires reasonable suspicion in order to be consistent with the Fourth Amendment.
We granted certiorari and now reverse.
In [United States v.] Molina-Tarazon, [279 F.3d 709] the Court of Appeals decided a case presenting similar facts to the one at bar. It asked “whether [the removal and dismantling of the defendant’s fuel tank] is a ‘routine’ border search for which no suspicion whatsoever is required.” The Court of Appeals stated that “[i]n order to conduct a search that goes beyond the routine, an inspector must have reasonable suspicion,” and the “critical factor” in determining whether a search is “routine” is the “degree of intrusiveness.”
The Court of Appeals seized on language from our opinion in United States v. Montoya de Hernandez, 473 U.S. 531 (1985), in which we used the word “routine” as a descriptive term in discussing border searches. The Court of Appeals took the term “routine,” fashioned a new balancing test, and extended it to searches of vehicles. But the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person—dignity and privacy interests of the person being searched—simply do not carry over to vehicles. Complex balancing tests to determine what is a “routine” search of a vehicle, as opposed to a more “intrusive” search of a person, have no place in border searches of vehicles.
The Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, we have stated that “searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.” Congress, since the beginning of our Government, “has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.” It is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity.
That interest in protecting the borders is illustrated in this case by the evidence that smugglers frequently attempt to penetrate our borders with contraband secreted in their automobiles’ fuel tank. Over the past 5 ½ fiscal years, there have been 18,788 vehicle drug seizures at the southern California ports of entry. Of those 18,788, gas tank drug seizures have accounted for 4,619 of the vehicle drug seizures, or approximately 25%. In addition, instances of persons smuggled in and around gas tank compartments are discovered at the ports of entry of San Ysidro and Otay Mesa at a rate averaging 1 approximately every 10 days.
Respondent asserts two main arguments with respect to his Fourth Amendment interests. First, he urges that he has a privacy interest in his fuel tank, and that the suspicionless disassembly of his tank is an invasion of his privacy. But on many occasions, we have noted that the expectation of privacy is less at the border than it is in the interior. We have long recognized that automobiles seeking entry into this country may be searched. It is difficult to imagine how the search of a gas tank, which should be solely a repository for fuel, could be more of an invasion of privacy than the search of the automobile’s passenger compartment.
Second, respondent argues that the Fourth Amendment “protects property as well as privacy” and that the disassembly and reassembly of his gas tank is a significant deprivation of his property interest because it may damage the vehicle. He does not, and on the record cannot, truly contend that the procedure of removal, disassembly, and reassembly of the fuel tank in this case or any other has resulted in serious damage to, or destruction of, the property. According to the Government, for example, in fiscal year 2003, 348 gas tank searches conducted along the southern border were negative (i.e., no contraband was found), the gas tanks were reassembled, and the vehicles continued their entry into the United States without incident.
Respondent cites not a single accident involving the vehicle or motorist in the many thousands of gas tank disassemblies that have occurred at the border. A gas tank search involves a brief procedure that can be reversed without damaging the safety or operation of the vehicle. If damage to a vehicle were to occur, the motorist might be entitled to recovery. While the interference with a motorist’s possessory interest is not insignificant when the Government removes, disassembles, and reassembles his gas tank, it nevertheless is justified by the Government’s paramount interest in protecting the border.
For the reasons stated, we conclude that the Government’s authority to conduct suspicionless inspections at the border includes the authority to remove, disassemble, and reassemble a vehicle’s fuel tank. While it may be true that some searches of property are so destructive as to require a different result, this was not one of them. The judgment of the United States Court of Appeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
Justice BREYER, concurring.
I join the Court’s opinion in full. I also note that Customs keeps track of the border searches its agents conduct, including the reasons for the searches. This administrative process should help minimize concerns that gas tank searches might be undertaken in an abusive manner.
* * *
In addition to permitting extensive suspicionless searches and seizures at international borders, the Court has permitted similar searches and seizures at checkpoints some distance from the border. The fixed checkpoint at issue in the next case was 66 miles north of the United States-Mexico border.
Supreme Court of the United States
United States v. Amado Martinez-Fuerte
Decided July 6, 1976 – 428 U.S. 543
Mr. Justice POWELL delivered the opinion of the Court.
Th[is] case[] involve[s] criminal prosecutions for offenses relating to the transportation of illegal Mexican aliens. [D]efendant was arrested at a permanent checkpoint operated by the Border Patrol away from the international border with Mexico, and [] sought the exclusion of certain evidence on the ground that the operation of the checkpoint was incompatible with the Fourth Amendment. [W]hether the Fourth Amendment was violated turns primarily on whether a vehicle may be stopped at a fixed checkpoint for brief questioning of its occupants even though there is no reason to believe the particular vehicle contains illegal aliens. We hold today that such stops are consistent with the Fourth Amendment. We also hold that the operation of a fixed checkpoint need not be authorized in advance by a judicial warrant.
A
The respondents are defendants in three separate prosecutions resulting from arrests made on three different occasions at the permanent immigration checkpoint on Interstate 5 near San Clemente, Cal. Interstate 5 is the principal highway between San Diego and Los Angeles, and the San Clemente checkpoint is 66 road miles north of the Mexican border.
The “point” agent visually screens all northbound vehicles, which the checkpoint brings to a virtual, if not a complete, halt. Most motorists are allowed to resume their progress without any oral inquiry or close visual examination. In a relatively small number of cases the “point” agent will conclude that further inquiry is in order. He directs these cars to a secondary inspection area, where their occupants are asked about their citizenship and immigration status. The Government informs us that at San Clemente the average length of an investigation in the secondary inspection area is three to five minutes. A direction to stop in the secondary inspection area could be based on something suspicious about a particular car passing through the checkpoint, but the Government concedes that none of the three stops at issue was based on any articulable suspicion. During the period when these stops were made, the checkpoint was operating under a magistrate’s “warrant of inspection,” which authorized the Border Patrol to conduct a routine-stop operation at the San Clemente location.
We turn now to the particulars of the stops and the procedural history of the case. Respondent Amado Martinez-Fuerte approached the checkpoint driving a vehicle containing two female passengers. The women were illegal Mexican aliens who had entered the United States at the San Ysidro port of entry by using false papers and rendezvoused with Martinez-Fuerte in San Diego to be transported northward. At the checkpoint their car was directed to the secondary inspection area. Martinez-Fuerte produced documents showing him to be a lawful resident alien, but his passengers admitted being present in the country unlawfully. He was charged, inter alia, with two counts of illegally transporting aliens. He moved before trial to suppress all evidence stemming from the stop on the ground that the operation of the checkpoint was in violation of the Fourth Amendment. The motion to suppress was denied, and he was convicted on both counts after a jury trial.
Martinez-Fuerte appealed his conviction. The Court of Appeals held, with one judge dissenting, that the[] stop[] violated the Fourth Amendment, concluding that a stop for inquiry is constitutional only if the Border Patrol reasonably suspects the presence of illegal aliens on the basis of articulable facts. It reversed Martinez-Fuerte’s conviction. We reverse and remand.
II
Before turning to the constitutional question, we examine the context in which it arises.
It has been national policy for many years to limit immigration into the United States. Interdicting the flow of illegal entrants from Mexico poses formidable law enforcement problems. The principal problem arises from surreptitious entries. The United States shares a border with Mexico that is almost 2,000 miles long, and much of the border area is uninhabited desert or thinly populated arid land. Although the Border Patrol maintains personnel, electronic equipment, and fences along portions of the border, it remains relatively easy for individuals to enter the United States without detection. It also is possible for an alien to enter unlawfully at a port of entry by the use of falsified papers or to enter lawfully but violate restrictions of entry in an effort to remain in the country unlawfully. Once within the country, the aliens seek to travel inland to areas where employment is believed to be available, frequently meeting by prearrangement with friends or professional smugglers who transport them in private vehicles.
The Border Patrol conducts three kinds of inland traffic-checking operations in an effort to minimize illegal immigration. Permanent checkpoints are maintained at or near intersections of important roads leading away from the border. They operate on a coordinated basis designed to avoid circumvention by smugglers and others who transport the illegal aliens. Temporary checkpoints, which operate like permanent ones, occasionally are established in other strategic locations. Finally, roving patrols are maintained to supplement the checkpoint system.
We are concerned here with permanent checkpoints, the locations of which are chosen on the basis of a number of factors. The Border Patrol believes that to assure effectiveness, a checkpoint must be (i) distant enough from the border to avoid interference with traffic in populated areas near the border, (ii) close to the confluence of two or more significant roads leading away from the border, (iii) situated in terrain that restricts vehicle passage around the checkpoint, (iv) on a stretch of highway compatible with safe operation, and (v) beyond the 25-mile zone in which “border passes” are valid.1
III
The Fourth Amendment imposes limits on search-and-seizure powers in order to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. In delineating the constitutional safeguards applicable in particular contexts, the Court has weighed the public interest against the Fourth Amendment interest of the individual, a process evident in our previous cases dealing with Border Patrol traffic-checking operations.
In Almeida-Sanchez v. United States, [413 U.S. 266 (1973)], the question was whether a roving-patrol unit constitutionally could search a vehicle for illegal aliens simply because it was in the general vicinity of the border. We recognized that important law enforcement interests were at stake but held that searches by roving patrols impinged so significantly on Fourth Amendment privacy interests that a search could be conducted without consent only if there was probable cause to believe that a car contained illegal aliens, at least in the absence of a judicial warrant authorizing random searches by roving patrols in a given area. We held in United States v. Ortiz, [422 U.S. 891 (1975)], that the same limitations applied to vehicle searches conducted at a permanent checkpoint.
In United States v. Brignoni-Ponce, [422 U.S. 873 (1975)], however, we recognized that other traffic-checking practices involve a different balance of public and private interests and appropriately are subject to less stringent constitutional safeguards. The question was under what circumstances a roving patrol could stop motorists in the general area of the border for brief inquiry into their residence status. We found that the interference with Fourth Amendment interests involved in such a stop was “modest,” while the inquiry served significant law enforcement needs. We therefore held that a roving-patrol stop need not be justified by probable cause and may be undertaken if the stopping officer is “aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion” that a vehicle contains illegal aliens.
IV
It is agreed that checkpoint stops are “seizures” within the meaning of the Fourth Amendment. The defendants contend primarily that the routine stopping of vehicles at a checkpoint is invalid because Brignoni-Ponce must be read as proscribing any stops in the absence of reasonable suspicion. [W]e turn first to whether reasonable suspicion is a prerequisite to a valid stop, a question to be resolved by balancing the interests at stake.
A
Our previous cases have recognized that maintenance of a traffic-checking program in the interior is necessary because the flow of illegal aliens cannot be controlled effectively at the border. We note here only the substantiality of the public interest in the practice of routine stops for inquiry at permanent checkpoints, a practice which the Government identifies as the most important of the traffic-checking operations. These checkpoints are located on important highways; in their absence such highways would offer illegal aliens a quick and safe route into the interior. Routine checkpoint inquiries apprehend many smugglers and illegal aliens who succumb to the lure of such highways. And the prospect of such inquiries forces others onto less efficient roads that are less heavily traveled, slowing their movement and making them more vulnerable to detection by roving patrols.
A requirement that stops on major routes inland always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens. In particular, such a requirement would largely eliminate any deterrent to the conduct of well-disguised smuggling operations, even though smugglers are known to use these highways regularly.
B
While the need to make routine checkpoint stops is great, the consequent intrusion on Fourth Amendment interests is quite limited. The stop does intrude to a limited extent on motorists’ right to “free passage without interruption,” and arguably on their right to personal security. But it involves only a brief detention of travelers during which “‘[a]ll that is required of the vehicle’s occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.’”
Neither the vehicle nor its occupants are searched, and visual inspection of the vehicle is limited to what can be seen without a search. This objective intrusion the stop itself, the questioning, and the visual inspection also existed in roving-patrol stops. But we view checkpoint stops in a different light because the subjective intrusion—the generating of concern or even fright on the part of lawful travelers—is appreciably less in the case of a checkpoint stop. In Ortiz, we noted:
“[T]he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.”
In Brignoni-Ponce, we recognized that Fourth Amendment analysis in this context also must take into account the overall degree of interference with legitimate traffic. We concluded there that random roving-patrol stops could not be tolerated because they “would subject the residents of … [border] areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers. … [They] could stop motorists at random for questioning, day or night, anywhere within 100 air miles of the 2,000-mile border, on a city street, a busy highway, or a desert road ….” There also was a grave danger that such unreviewable discretion would be abused by some officers in the field.
Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second, checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops. Moreover, a claim that a particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review.
The defendants arrested at the San Clemente checkpoint suggest that its operation involves a significant extra element of intrusiveness in that only a small percentage of cars are referred to the secondary inspection area, thereby “stigmatizing” those diverted and reducing the assurances provided by equal treatment of all motorists. We think defendants overstate the consequences. Referrals are made for the sole purpose of conducting a routine and limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy. The objective intrusion of the stop and inquiry thus remains minimal. Selective referral may involve some annoyance, but it remains true that the stops should not be frightening or offensive because of their public and relatively routine nature. Moreover, selective referrals rather than questioning the occupants of every car tend to advance some Fourth Amendment interests by minimizing the intrusion on the general motoring public.
C
The defendants note correctly that to accommodate public and private interests some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure. But the Fourth Amendment imposes no irreducible requirement of such suspicion.
[Here,] we deal neither with searches nor with the sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection. As we have noted earlier, one’s expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one’s residence. And the reasonableness of the procedures followed in making these checkpoint stops makes the resulting intrusion on the interests of motorists minimal. On the other hand, the purpose of the stops is legitimate and in the public interest, and the need for this enforcement technique is demonstrated by the records in the cases before us. Accordingly, we hold that the stops and questioning at issue may be made in the absence of any individualized suspicion at reasonably located checkpoints.
We further believe that it is constitutional to refer motorists selectively to the secondary inspection area at the San Clemente checkpoint on the basis of criteria that would not sustain a roving-patrol stop. Thus, even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry, we perceive no constitutional violation. As the intrusion here is sufficiently minimal that no particularized reason need exist to justify it, we think it follows that the Border Patrol officers must have wide discretion in selecting the motorists to be diverted for the brief questioning involved.2
VI
In summary, we hold that stops for brief questioning routinely conducted at permanent checkpoints are consistent with the Fourth Amendment and need not be authorized by warrant. The principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop. We have held that checkpoint searches are constitutional only if justified by consent or probable cause to search. And our holding today is limited to the type of stops described in this opinion. “[A]ny further detention … must be based on consent or probable cause.” None of the defendants in these cases argues that the stopping officers exceeded these limitations. We reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case with directions to affirm the conviction of Martinez-Fuerte.
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
Today’s decision is the ninth this Term marking the continuing evisceration of Fourth Amendment protections against unreasonable searches and seizures. Consistent with this purpose to debilitate Fourth Amendment protections, the Court’s decision today virtually empties the Amendment of its reasonableness requirement by holding that law enforcement officials manning fixed checkpoint stations who make standardless seizures of persons do not violate the Amendment. I dissent.
We are told today [] that motorists without number may be individually stopped, questioned, visually inspected, and then further detained without even a showing of articulable suspicion, let alone the heretofore constitutional minimum of reasonable suspicion, a result that permits search and seizure to rest upon “nothing more substantial than inarticulate hunches.” This defacement of Fourth Amendment protections is arrived at by a balancing process that overwhelms the individual’s protection against unwarranted official intrusion by a governmental interest said to justify the search and seizure. But that method is only a convenient cover for condoning arbitrary official conduct.
[T]he Court, without explanation, also ignores one major source of vexation. In abandoning any requirement of a minimum of reasonable suspicion, or even articulable suspicion, the Court in every practical sense renders meaningless, as applied to checkpoint stops, the Brignoni-Ponce holding that “standing alone [Mexican appearance] does not justify stopping all Mexican-Americans to ask if they are aliens.” Since the objective is almost entirely the Mexican illegally in the country, checkpoint officials, uninhibited by any objective standards and therefore free to stop any or all motorists without explanation or excuse, wholly on whim, will perforce target motorists of Mexican appearance. The process will then inescapably discriminate against citizens of Mexican ancestry and Mexican aliens lawfully in this country for no other reason than that they unavoidably possess the same “suspicious” physical and grooming characteristics of illegal Mexican aliens.
Every American citizen of Mexican ancestry and every Mexican alien lawfully in this country must know after today’s decision that he travels the fixed checkpoint highways at the risk of being subjected not only to a stop, but also to detention and interrogation, both prolonged and to an extent far more than for non-Mexican appearing motorists. To be singled out for referral and to be detained and interrogated must be upsetting to any motorist. One wonders what actual experience supports my Brethren’s conclusion that referrals “should not be frightening or offensive because of their public and relatively routine nature.” In point of fact, referrals viewed in context, are not relatively routine; thousands are otherwise permitted to pass. But for the arbitrarily selected motorists who must suffer the delay and humiliation of detention and interrogation, the experience can obviously be upsetting. And that experience is particularly vexing for the motorist of Mexican ancestry who is selectively referred, knowing that the officers’ target is the Mexican alien. That deep resentment will be stirred by a sense of unfair discrimination is not difficult to foresee.3
In short, if a balancing process is required, the balance should be struck to require that Border Patrol officers act upon at least reasonable suspicion in making checkpoint stops. In any event, even if a different balance were struck, the Court cannot, without ignoring the Fourth Amendment requirement of reasonableness, justify wholly unguided seizures by officials manning the checkpoints.
The cornerstone of this society, indeed of any free society, is orderly procedure. The Constitution, as originally adopted, was therefore, in great measure, a procedural document. For the same reasons the drafters of the Bill of Rights largely placed their faith in procedural limitations on government action. The Fourth Amendment’s requirement that searches and seizures be reasonable enforces this fundamental understanding in erecting its buffer against the arbitrary treatment of citizens by government. But to permit, as the Court does today, police discretion to supplant the objectivity of reason and, thereby, expediency to reign in the place of order, is to undermine Fourth Amendment safeguards and threaten erosion of the cornerstone of our system of a government, for, as Mr. Justice Frankfurter reminded us, “[t]he history of American freedom is, in no small measure, the history of procedure.”
Notes, Comments, and Questions
A police officer is 66 miles from the Canadian border. There is no checkpoint. The officer spots a car and is suspicious that it contains Canadians who are not legally in the United States. How much evidence must the officer have to stop the car to conduct a brief investigation of its occupants?
What is your authority for your answer to the previous question? If you do not have authority to which you can refer, review the Court’s opinion in Martinez-Fuerte. In that opinion, which mostly concerned fixed checkpoints, the Court referred to prior law concerning roving patrols.
Opening another person’s mail without permission is normally a serious invasion of privacy, and police normally must obtain a search warrant before opening a suspect’s mail. A great deal of mail, however, is sent to the United States from abroad and accordingly crosses an international border. Here the Court considers whether agents may open such mail at will.
Supreme Court of the United States
United States v. Charles W. Ramsey
Decided June 6, 1977 – 431 U.S. 606
Mr. Justice REHNQUIST delivered the opinion of the Court.
Customs officials, acting with “reasonable cause to suspect” a violation of customs laws, opened for inspection incoming international letter-class mail without first obtaining a search warrant. A divided Court of Appeals for the District of Columbia Circuit held contrary to every other Court of Appeals which has considered the matter, that the Fourth Amendment forbade the opening of such mail without probable cause and a search warrant. We granted the Government’s petition for certiorari to resolve this Circuit conflict. We now reverse.
I
Charles W. Ramsey and James W. Kelly jointly commenced a heroin-by-mail enterprise in the Washington, D.C., area. The process involved their procuring of heroin, which was mailed in letters from Bangkok, Thailand, and sent to various locations in the District of Columbia area for collection. Two of their suppliers, Sylvia Bailey and William Ward, who were located in West Germany, were engaged in international narcotics trafficking during the latter part of 1973 and the early part of 1974. West German agents, pursuant to court-authorized electronic surveillance, intercepted several trans-Atlantic conversations between Bailey and Ramsey during which their narcotics operation was discussed. By late January 1974, Bailey and Ward had gone to Thailand. Thai officials, alerted to their presence by West German authorities, placed them under surveillance. Ward was observed mailing letter-sized envelopes in six different mail boxes; five of these envelopes were recovered; and one of the addresses in Washington, D.C., was later linked to respondents. Bailey and Ward were arrested by Thai officials on February 2, 1974; among the items seized were eleven heroin-filed envelopes addressed to the Washington, D.C., area, and later connected with respondents.
Two days after this arrest of Bailey and Ward, Inspector George Kallnischkies, a United States customs officer in New York City, without any knowledge of the foregoing events, inspecting a sack of incoming international mail from Thailand, spotted eight envelopes that were bulky and which he believed might contain merchandise. The envelopes, all of which appeared to him to have been typed on the same typewriter, were addressed to four different locations in the Washington, D.C., area. Inspector Kallnischkies, based on the fact that the letters were from Thailand, a known source of narcotics, and were “rather bulky,” suspected that the envelopes might contain merchandise or contraband rather than correspondence. He took the letters to an examining area in the post office, and felt one of the letters: It “felt like there was something in there, in the envelope. It was not just plain paper that the envelope is supposed to contain.” He weighed one of the envelopes, and found it weighed 42 grams, some three to six times the normal weight of an airmail letter. Inspector Kallnischkies then opened that envelope:
“In there I saw some cardboard and between the cardboard, if I recall, there was a plastic bag containing a white powdered substance, which, based on experience, I knew from Thailand would be heroin. I went ahead and removed a sample. Gave it a field test, a Marquis Reagent field test, and I had a positive reaction for heroin.” He proceeded to open the other seven envelopes which “in a lot of ways were identical”; examination revealed that at least the contents were in fact identical: each contained heroin.
Ramsey and Kelly were indicted, along with Bailey and Ward, in a 17-count indictment. Respondents moved to suppress the heroin. The District Court denied the motions, and after a bench trial on the stipulated record, respondents were found guilty and sentenced to imprisonment for what is in effect a term of 10 to 30 years. The Court of Appeals for the District of Columbia Circuit, one judge dissenting, reversed the convictions, holding that the “border search exception to the warrant requirement” applicable to persons, baggage, and mailed packages did not apply to the routine opening of international letter mail, and held that the Constitution requires that “before international letter mail is opened, a showing of probable cause be made to and a warrant secured from a neutral magistrate.”
II
Congress and the applicable postal regulations authorized the actions undertaken in this case. [Title 19 U.S.C. § 482] authorizes customs officials to inspect, under the circumstances therein stated, incoming international mail. The “reasonable cause to suspect” test adopted by the statute is, we think, a practical test which imposes a less stringent requirement than that of “probable cause” imposed by the Fourth Amendment as a requirement for the issuance of warrants. Inspector Kallnischkies, at the time he opened the letters, knew that they were from Thailand, were bulky, were many times the weight of a normal airmail letter, and “felt like there was something in there.” Under these circumstances, we have no doubt that he had reasonable “cause to suspect” that there was merchandise or contraband in the envelopes. The search, therefore, was plainly authorized by the statute.
Since the search in this case was authorized by statute, we are left simply with the question of whether the search, nevertheless violated the Constitution. Specifically, we need not decide whether Congress conceived the statute as a necessary precondition to the validity of the search or whether it was viewed, instead, as a limitation on otherwise existing authority of the Executive. Having acted pursuant to, and within the scope of, a congressional Act, Inspector Kallnischkies’ searches were permissible unless they violated the Constitution.
A
That searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration. This interpretation, that border searches were not subject to the warrant provisions of the Fourth Amendment and were “reasonable” within the meaning of that Amendment, has been faithfully adhered to by this Court. [We have] recognized the distinction between searches within this country, requiring probable cause, and border searches:
“It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travelers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country … have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.” (Emphasis supplied.)
Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be “reasonable” by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless “reasonable” has a history as old as the Fourth Amendment itself. We reaffirm it now.
B
The border-search exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country. It is clear that there is nothing in the rationale behind the border-search exception which suggests that the mode of entry will be critical. It was conceded at oral argument that customs officials could search, without probable cause and without a warrant, envelopes carried by an entering traveler, whether in his luggage or on his person. Surely no different constitutional standard should apply simply because the envelopes were mailed not carried. The critical fact is that the envelopes cross the border and enter this country, not that that are brought in by one mode of transportation rather than another. It is their entry into this country from without it that makes a resulting search “reasonable.”
We therefore conclude that the Fourth Amendment does not interdict the actions taken by Inspector Kallnischkies in opening and searching the eight envelopes. The judgment of the Court of Appeals is, therefore,
Reversed.
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
The decisive question in this case is whether Congress has granted customs officials the authority to open and inspect personal letters entering the United States from abroad without the knowledge or consent of the sender or the addressee, and without probable cause to believe the mail contains contraband or dutiable merchandise.
If the Government is allowed to exercise the power it claims, the door will be open to the wholesale, secret examination of all incoming international letter mail. No notice would be necessary either before or after the search. Until Congress has made an unambiguous policy decision that such an unprecedented intrusion upon a vital method of personal communication is in the Nation’s interest, this Court should not address the serious constitutional question it decides today. For it is settled that “when action taken by an inferior governmental agency was accomplished by procedures which raise serious constitutional questions, an initial inquiry will be made to determine whether or not ‘the President or Congress, within their respective constitutional powers, specifically has decided that the imposed procedures are necessary and warranted and has authorized their use.’”
Accordingly, I would affirm the judgment of the Court of Appeals.
* * *
In the next case, the Court considers the treatment of a woman who flew to the United States from abroad and was suspected of smuggling drugs. Her unpleasant ordeal further illustrates the broad authority and discretion given to agents at the border.
Supreme Court of the United States
United States v. Rosa Elvira Montoya de Hernandez
Decided July 1, 1985 – 473 U.S. 531
Justice REHNQUIST delivered the opinion of the Court.
Respondent Rosa Elvira Montoya de Hernandez was detained by customs officials upon her arrival at the Los Angeles Airport on a flight from Bogota, Colombia. She was found to be smuggling 88 cocaine-filled balloons in her alimentary canal, and was convicted after a bench trial of various federal narcotics offenses. A divided panel of the United States Court of Appeals for the Ninth Circuit reversed her convictions, holding that her detention violated the Fourth Amendment to the United States Constitution because the customs inspectors did not have a “clear indication” of alimentary canal smuggling at the time she was detained. Because of a conflict in the decisions of the Courts of Appeals on this question and the importance of its resolution to the enforcement of customs laws, we granted certiorari. We now reverse.
Respondent arrived at Los Angeles International Airport shortly after midnight, March 5, 1983, on Avianca Flight 080, a direct 10-hour flight from Bogota, Colombia. Her visa was in order so she was passed through Immigration and proceeded to the customs desk. At the customs desk she encountered Customs Inspector Talamantes, who reviewed her documents and noticed from her passport that she had made at least eight recent trips to either Miami or Los Angeles. Talamantes referred respondent to a secondary customs desk for further questioning. At this desk Talamantes and another inspector asked respondent general questions concerning herself and the purpose of her trip. Respondent revealed that she spoke no English and had no family or friends in the United States. She explained in Spanish that she had come to the United States to purchase goods for her husband’s store in Bogota. The customs inspectors recognized Bogota as a “source city” for narcotics. Respondent possessed \$5,000 in cash, mostly \$50 bills, but had no billfold. She indicated to the inspectors that she had no appointments with merchandise vendors, but planned to ride around Los Angeles in taxicabs visiting retail stores such as J.C. Penney and K-Mart in order to buy goods for her husband’s store with the \$5,000.
Respondent admitted that she had no hotel reservations, but stated that she planned to stay at a Holiday Inn. Respondent could not recall how her airline ticket was purchased. When the inspectors opened respondent’s one small valise they found about four changes of “cold weather” clothing. Respondent had no shoes other than the high-heeled pair she was wearing. Although respondent possessed no checks, waybills, credit cards, or letters of credit, she did produce a Colombian business card and a number of old receipts, waybills, and fabric swatches displayed in a photo album.
At this point Talamantes and the other inspector suspected that respondent was a “balloon swallower,” one who attempts to smuggle narcotics into this country hidden in her alimentary canal. Over the years Inspector Talamantes had apprehended dozens of alimentary canal smugglers arriving on Avianca Flight 080.
The inspectors requested a female customs inspector to take respondent to a private area and conduct a patdown and strip search. During the search the female inspector felt respondent’s abdomen area and noticed a firm fullness, as if respondent were wearing a girdle. The search revealed no contraband, but the inspector noticed that respondent was wearing two pairs of elastic underpants with a paper towel lining the crotch area.
When respondent returned to the customs area and the female inspector reported her discoveries, the inspector in charge told respondent that he suspected she was smuggling drugs in her alimentary canal. Respondent agreed to the inspector’s request that she be x-rayed at a hospital but in answer to the inspector’s query stated that she was pregnant. She agreed to a pregnancy test before the x ray. Respondent withdrew the consent for an x ray when she learned that she would have to be handcuffed en route to the hospital. The inspector then gave respondent the option of returning to Colombia on the next available flight, agreeing to an x ray, or remaining in detention until she produced a monitored bowel movement that would confirm or rebut the inspectors’ suspicions. Respondent chose the first option and was placed in a customs office under observation. She was told that if she went to the toilet she would have to use a wastebasket in the women’s restroom, in order that female customs inspectors could inspect her stool for balloons or capsules carrying narcotics. The inspectors refused respondent’s request to place a telephone call.
Respondent sat in the customs office, under observation, for the remainder of the night. During the night customs officials attempted to place respondent on a Mexican airline that was flying to Bogota via Mexico City in the morning. The airline refused to transport respondent because she lacked a Mexican visa necessary to land in Mexico City. Respondent was not permitted to leave, and was informed that she would be detained until she agreed to an x ray or her bowels moved. She remained detained in the customs office under observation, for most of the time curled up in a chair leaning to one side. She refused all offers of food and drink, and refused to use the toilet facilities. The Court of Appeals noted that she exhibited symptoms of discomfort consistent with “heroic efforts to resist the usual calls of nature.”
At the shift change at 4 o’clock the next afternoon, almost 16 hours after her flight had landed, respondent still had not defecated or urinated or partaken of food or drink. At that time customs officials sought a court order authorizing a pregnancy test, an x ray, and a rectal examination. The Federal Magistrate issued an order just before midnight that evening, which authorized a rectal examination and involuntary x ray, provided that the physician in charge considered respondent’s claim of pregnancy. Respondent was taken to a hospital and given a pregnancy test, which later turned out to be negative. Before the results of the pregnancy test were known, a physician conducted a rectal examination and removed from respondent’s rectum a balloon containing a foreign substance. Respondent was then placed formally under arrest. By 4:10 a.m. respondent had passed 6 similar balloons; over the next four days she passed 88 balloons containing a total of 528 grams of 80% pure cocaine hydrochloride.
After a suppression hearing the District Court admitted the cocaine in evidence against respondent. She was convicted of possession of cocaine with intent to distribute and unlawful importation of cocaine.
A divided panel of the United States Court of Appeals for the Ninth Circuit reversed respondent’s convictions. The court noted that customs inspectors had a “justifiably high level of official skepticism” about respondent’s good motives, but the inspectors decided to let nature take its course rather than seek an immediate magistrate’s warrant for an x ray. Such a magistrate’s warrant required a “clear indication” or “plain suggestion” that the traveler was an alimentary canal smuggler under previous decisions of the Court of Appeals. The court applied this required level of suspicion to respondent’s case. The court questioned the “humanity” of the inspectors’ decision to hold respondent until her bowels moved, knowing that she would suffer “many hours of humiliating discomfort” if she chose not to submit to the x-ray examination. The court concluded that under a “clear indication” standard “the evidence available to the customs officers when they decided to hold [respondent] for continued observation was insufficient to support the 16-hour detention.”
The Government contends that the customs inspectors reasonably suspected that respondent was an alimentary canal smuggler, and this suspicion was sufficient to justify the detention. In support of the judgment below respondent argues, inter alia, that reasonable suspicion would not support respondent’s detention, and in any event the inspectors did not reasonably suspect that respondent was carrying narcotics internally.
The Fourth Amendment commands that searches and seizures be reasonable. What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself. The permissibility of a particular law enforcement practice is judged by “balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”
Here the seizure of respondent took place at the international border. Since the founding of our Republic, Congress has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.
Consistently, therefore, with Congress’ power to protect the Nation by stopping and examining persons entering this country, the Fourth Amendment’s balance of reasonableness is qualitatively different at the international border than in the interior. Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant, and first-class mail may be opened without a warrant on less than probable cause. Automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion even if the stop is based largely on ethnicity, and boats on inland waters with ready access to the sea may be hailed and boarded with no suspicion whatever.
[There is] longstanding concern for the protection of the integrity of the border. This concern is, if anything, heightened by the veritable national crisis in law enforcement caused by smuggling of illicit narcotics, and in particular by the increasing utilization of alimentary canal smuggling. This desperate practice appears to be a relatively recent addition to the smugglers’ repertoire of deceptive practices, and it also appears to be exceedingly difficult to detect. Congress had recognized these difficulties. Customs agents may “stop, search, and examine” any “vehicle, beast or person” upon which an officer suspects there is contraband or “merchandise which is subject to duty.”
Balanced against the sovereign’s interests at the border are the Fourth Amendment rights of respondent. Having presented herself at the border for admission, and having subjected herself to the criminal enforcement powers of the Federal Government, respondent was entitled to be free from unreasonable search and seizure. But not only is the expectation of privacy less at the border than in the interior, the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border.
We have not previously decided what level of suspicion would justify a seizure of an incoming traveler for purposes other than a routine border search. We hold that the detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal.
The “reasonable suspicion” standard has been applied in a number of contexts and effects a needed balance between private and public interests when law enforcement officials must make a limited intrusion on less than probable cause. It thus fits well into the situations involving alimentary canal smuggling at the border: this type of smuggling gives no external signs and inspectors will rarely possess probable cause to arrest or search, yet governmental interests in stopping smuggling at the border are high indeed. Under this standard officials at the border must have a “particularized and objective basis for suspecting the particular person” of alimentary canal smuggling.
The facts, and their rational inferences, known to customs inspectors in this case clearly supported a reasonable suspicion that respondent was an alimentary canal smuggler. We need not belabor the facts, including respondent’s implausible story, that supported this suspicion. The trained customs inspectors had encountered many alimentary canal smugglers and certainly had more than an “inchoate and unparticularized suspicion or ‘hunch,’” that respondent was smuggling narcotics in her alimentary canal. The inspectors’ suspicion was a “‘common-sense conclusio[n] about human behavior’ upon which ‘practical people,’—including government officials, are entitled to rely.”
The final issue in this case is whether the detention of respondent was reasonably related in scope to the circumstances which justified it initially. In this regard we have cautioned that courts should not indulge in “unrealistic second-guessing,” and we have noted that “creative judge[s], engaged in post hoc evaluations of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished.” But “[t]he fact that the protection of the public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, in itself, render the search unreasonable.” Authorities must be allowed “to graduate their response to the demands of any particular situation.” Here, respondent was detained incommunicado for almost 16 hours before inspectors sought a warrant; the warrant then took a number of hours to procure, through no apparent fault of the inspectors. This length of time undoubtedly exceeds any other detention we have approved under reasonable suspicion. But we have also consistently rejected hard-and-fast time limits. Instead, “common sense and ordinary human experience must govern over rigid criteria.”
The rudimentary knowledge of the human body which judges possess in common with the rest of humankind tells us that alimentary canal smuggling cannot be detected in the amount of time in which other illegal activity may be investigated through brief Terry-type stops. It presents few, if any external signs; a quick frisk will not do, nor will even a strip search. In the case of respondent the inspectors had available, as an alternative to simply awaiting her bowel movement, an x ray. They offered her the alternative of submitting herself to that procedure. But when she refused that alternative, the customs inspectors were left with only two practical alternatives: detain her for such time as necessary to confirm their suspicions, a detention which would last much longer than the typical Terry stop, or turn her loose into the interior carrying the reasonably suspected contraband drugs.
The inspectors in this case followed this former procedure. They no doubt expected that respondent, having recently disembarked from a 10-hour direct flight with a full and stiff abdomen, would produce a bowel movement without extended delay. But her visible efforts to resist the call of nature, which the court below labeled “heroic,” disappointed this expectation and in turn caused her humiliation and discomfort. Our prior cases have refused to charge police with delays in investigatory detention attributable to the suspect’s evasive actions, and that principle applies here as well. Respondent alone was responsible for much of the duration and discomfort of the seizure.
Under these circumstances, we conclude that the detention in this case was not unreasonably long. It occurred at the international border, where the Fourth Amendment balance of interests leans heavily to the Government. At the border, customs officials have more than merely an investigative law enforcement role. They are also charged, along with immigration officials, with protecting this Nation from entrants who may bring anything harmful into this country, whether that be communicable diseases, narcotics, or explosives. In this regard the detention of a suspected alimentary canal smuggler at the border is analogous to the detention of a suspected tuberculosis carrier at the border: both are detained until their bodily processes dispel the suspicion that they will introduce a harmful agent into this country.
Respondent’s detention was long, uncomfortable, indeed, humiliating; but both its length and its discomfort resulted solely from the method by which she chose to smuggle illicit drugs into this country. “[T]he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.” Here, by analogy, in the presence of articulable suspicion of smuggling in her alimentary canal, the customs officers were not required by the Fourth Amendment to pass respondent and her 88 cocaine-filled balloons into the interior. Her detention for the period of time necessary to either verify or dispel the suspicion was not unreasonable. The judgment of the Court of Appeals is therefore
Reversed.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
We confront a “disgusting and saddening episode” at our Nation’s border. Shortly after midnight on March 5, 1983, the respondent Rosa Elvira Montoya De Hernandez was detained by customs officers because she fit the profile of an “alimentary canal smuggler.” This profile did not of course give the officers probable cause to believe that De Hernandez was smuggling drugs into the country, but at most a “reasonable suspicion” that she might be engaged in such an attempt. After a thorough strip search failed to uncover any contraband, De Hernandez agreed to go to a local hospital for an abdominal x ray to resolve the matter. When the officers approached with handcuffs at the ready to lead her away, however, “she crossed her arms by her chest and began stepping backwards shaking her head negatively,” protesting: “You are not going to put those on me. That is an insult to my character.”
Stymied in their efforts, the officers decided on an alternative course: they would simply lock De Hernandez away in an adjacent manifest room “until her peristaltic functions produced a monitored bowel movement.” The officers explained to De Hernandez that she could not leave until she had excreted by squatting over a wastebasket pursuant to the watchful eyes of two attending matrons. De Hernandez responded: “I will not submit to your degradation and I’d rather die.” She was locked away with the matrons.
De Hernandez remained locked up in the room for almost 24 hours. Three shifts of matrons came and went during this time. The room had no bed or couch on which she could lie, but only hard chairs and a table. The matrons told her that if she wished to sleep she could lie down on the hard, uncarpeted floor. De Hernandez instead “sat in her chair clutching her purse,” “occasionally putting her head down on the table to nap.” Most of the time she simply wept and pleaded “to go home.” She repeatedly begged for permission “to call my husband and tell him what you are doing to me.” Permission was denied. Sobbing, she insisted that she had to “make a phone call home so that she could talk to her children and to let them know that everything was all right.” Permission again was denied. In fact, the matrons considered it highly “unusual” that “each time someone entered the search room, she would take out two small pictures of her children and show them to the person.” De Hernandez also demanded that her attorney be contacted. Once again, permission was denied. As far as the outside world knew, Rosa de Hernandez had simply vanished. And although she already had been stripped and searched and probed, the customs officers decided about halfway through her ordeal to repeat that process—“to ensure the safety of the surveilling officers. The result was again negative.”
After almost 24 hours had passed, someone finally had the presence of mind to consult a Magistrate and to obtain a court order for an x ray and a body-cavity search. De Hernandez, “very agitated,” was handcuffed and led away to the hospital. A rectal examination disclosed the presence of a cocaine-filled balloon. At approximately 3:15 on the morning of March 6, almost 27 hours after her initial detention, De Hernandez was formally placed under arrest and advised of her Miranda rights. Over the course of the next four days she excreted a total of 88 balloons.
The issue [] is simply this: Does the Fourth Amendment permit an international traveler, citizen or alien, to be subjected to the sort of treatment that occurred in this case without the sanction of a judicial officer and based on nothing more than the “reasonable suspicion” of low-ranking investigative officers that something might be amiss? The Court today concludes that the Fourth Amendment grants such sweeping and unmonitored authority to customs officials. It reasons that “[t]he permissibility of a particular law enforcement practice is judged by ‘balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’” The Court goes on to assert that the “balance of reasonableness is qualitatively different at the international border,” and that searches and seizures in these circumstances may therefore be conducted without probable cause or a warrant. Thus a traveler at the Nation’s border may be detained for criminal investigation merely if the authorities “reasonably suspect that the traveler is smuggling contraband.” There are no “hard-and-fast time limits” for such investigative detentions, because “‘common sense and ordinary human experience must govern over rigid criteria.’” Applying this “reasonableness” test to the instant case, the Court concludes that the “[r]espondent alone was responsible for much of the duration and discomfort of the seizure.”
I dissent. Indefinite involuntary incommunicado detentions “for investigation” are the hallmark of a police state, not a free society. In my opinion, Government officials may no more confine a person at the border under such circumstances for purposes of criminal investigation than they may within the interior of the country. The nature and duration of the detention here may well have been tolerable for spoiled meat or diseased animals, but not for human beings held on simple suspicion of criminal activity. I believe such indefinite detentions can be “reasonable” under the Fourth Amendment only with the approval of a magistrate. I also believe that such approval can be given only upon a showing of probable cause.
At some point [] further investigation involves such severe intrusions on the values the Fourth Amendment protects that more stringent safeguards are required. For example, the length and nature of a detention may, at least when conducted for criminal-investigative purposes, ripen into something approximating a full-scale custodial arrest—indeed, the arrestee, unlike the detainee in cases such as this, is at least given such basic rights as a telephone call, warnings, a bed, a prompt hearing before the nearest federal magistrate, an appointed attorney, and consideration of bail. In addition, border detentions may involve the use of such highly intrusive investigative techniques as body-cavity searches, x-ray searches, and stomach-pumping.
I believe that detentions and searches falling into these more intrusive categories are presumptively “reasonable” within the meaning of the Fourth Amendment only if authorized by a judicial officer. We have, to be sure, held that executive officials need not obtain prior judicial authorization where exigent circumstances would make such authorization impractical and counterproductive. In so holding, however, we have reaffirmed the general rule that “the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure.” And even where a person has permissibly been taken into custody without a warrant, we have held that a prompt probable-cause determination by a detached magistrate is a constitutional “prerequisite to extended restraint of liberty following arrest.”
There is no persuasive reason not to apply these principles to lengthy and intrusive criminal-investigative detentions occurring at the Nation’s border. To be sure, the Court today invokes precedent stating that neither probable cause nor a warrant ever have been required for border searches. If this is the law as a general matter, I believe it is time that we reexamine its foundations.
Something has gone fundamentally awry in our constitutional jurisprudence when a neutral and detached magistrate’s authorization is required before the authorities may inspect “the plumbing, heating, ventilation, gas, and electrical systems” in a person’s home, investigate the back rooms of his workplace, or poke through the charred remains of his gutted garage, but not before they may hold him in indefinite involuntary isolation at the Nation’s border to investigate whether he might be engaged in criminal wrongdoing. No less than those who conduct administrative searches, those charged with investigative duties at the border “should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks,” because “unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy.” And unlike administrative searches, which typically involve “relatively limited invasion[s]” of individual privacy interests, many border searches carry grave potential for “arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” The conditions of De Hernandez’ detention in this case—indefinite confinement in a squalid back room cut off from the outside world, the absence of basic amenities that would have been provided to even the vilest of hardened criminals, repeated strip searches—in many ways surpassed the conditions of a full custodial arrest. Although the Court previously has declined to require a warrant for border searches involving “minor interference with privacy resulting from the mere stop for questioning,” surely there is no parallel between such “minor” intrusions and the extreme invasion of personal privacy and dignity that occurs in detentions and searches such as that before us today.
The Court argues [] that the length and “discomfort” of De Hernandez’ detention “resulted solely from the method by which she chose to smuggle illicit drugs into this country,” and it speculates that only her “‘heroic’” efforts prevented the detention from being brief and to the point. Although we now know that De Hernandez was indeed guilty of smuggling drugs internally, such post hoc rationalizations have no place in our Fourth Amendment jurisprudence, which demands that we “prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure.” At the time the authorities simply had, at most, a reasonable suspicion that De Hernandez might be engaged in such smuggling. Neither the law of the land nor the law of nature supports the notion that petty government officials can require people to excrete on command; indeed, the Court relies elsewhere on “[t]he rudimentary knowledge of the human body” in sanctioning the “much longer than … typical” duration of detentions such as this. And, with all respect to the Court, it is not “‘unrealistic second-guessing,’” to predict that an innocent traveler, locked away in incommunicado detention in unfamiliar surroundings in a foreign land, might well be so frightened and exhausted as to be unable so to “cooperate” with the authorities.
The Court further appears to believe that such investigative practices are “reasonable,” however, on the premise that a traveler’s “expectation of privacy [is] less at the border than in the interior.” This may well be so with respect to routine border inspections, but I do not imagine that decent and law-abiding international travelers have yet reached the point where they “expect” to be thrown into locked rooms and ordered to excrete into wastebaskets, held incommunicado until they cooperate, or led away in handcuffs to the nearest hospital for exposure to various medical procedures—all on nothing more than the “reasonable” suspicions of low-ranking enforcement agents. In fact, many people from around the world travel to our borders precisely to escape such unchecked executive investigatory discretion. What a curious first lesson in American liberty awaits them on their arrival.
In my opinion, allowing the Government to hold someone in indefinite, involuntary, incommunicado isolation without probable cause and a judicial warrant violates our constitutional charter whether the purpose is to extract ransom or to investigate suspected criminal activity. Nothing in the Fourth Amendment permits an exception for such actions at the Nation’s border. It is tempting, of course, to look the other way in a case that so graphically illustrates the “veritable national crisis” caused by narcotics trafficking. But if there is one enduring lesson in the long struggle to balance individual rights against society’s need to defend itself against lawlessness, it is that “[i]t is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.”
I dissent.
Notes, Comments, and Questions
Students should be aware of three ongoing controversies related to border enforcement: (1) the existence and significance of an “extended border” and areas known as the “functional equivalent” of the border, (2) the treatment of electronic devices crossing the border, and (3) the treatment of persons crossing the border seeking asylum or otherwise fleeing persecution and poverty.
The Functional Border and Extended Border
International airports and the land immediately surrounding those airports are treated as the “functional equivalent” of the border. Accordingly, a traveler flying from England to St. Louis could be subjected to the same searches permissible at the border itself.
More controversially, federal officials have argued that they possess search and seizure authority within 100 miles of international borders in an area known as the “extended border.” See, e.g., 8 C.F.R. § 287.1. If all authority granted to law enforcement at the physical border exists throughout the extended border, then people in New York City, Los Angeles, Houston, New Orleans, Seattle, Washington, D.C., and all of Florida could be subjected to suspicionless searches of their persons and effects at will. Civil libertarian organizations have accordingly decried the concept of the extended border, calling it an unlawful “Constitution-Free Zone.”
The map below illustrates the ACLU’s take on the extended border:
It is not clear precisely what authority federal officials claim to possess in the extended border—official guidance documents differ, and actual practice can diverge from such documents—nor is there robust judicial guidance. In an era of increasingly-vigorous immigration enforcement, this issue is attracting more attention.
Electronic Devices at or Near the Border
Referring to Supreme Court cases granting border officials wide discretion to search persons and effects entering and leaving the United States, federal officials have claimed to have authority to inspect electronic devices at the border. Privacy advocates have argued that searches conducted under this purported authority violate the Fourth Amendment.
Although some caselaw exists on this question, see, e.g., United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc) (holding that reasonable suspicion is necessary to search electronic devices at border in certain cases); Alasaad v. McAleenan, 1:17-cv-11730-DJC (D. Mass. Nov. 12, 2019) (applying rule to larger class of searches); United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (allowing suspicionless searches), the law is not clear. Further litigation is ongoing.
In response to the risk of searches (which could expose lawful information such as trade secrets, personal correspondence, and embarrassing literature to inspection), some international travelers have begun wiping data from their computers and other devices before entering the United States; they can then download data from the cloud after clearing immigration and customs.
Treatment of Refugees, Asylum Seekers, and Other Migrants
The treatment of border crossers has received significant news coverage recently. In particular, the question of how the United States may treat migrants who claim to be fleeing persecution—especially migrants entering the United States with children—has inspired intense debate. For example, U.S. Senator Kamala Harris visited the Otay Mesa Detention Facility4 near San Diego in June 2018 and called the treatment of detainees “a crime against humanity that is being committed by the United States government.” As one might expect, Immigration and Customs Enforcement and Department of Homeland Security officials have disagreed with such assessments and have defended current practices as lawful exercises of the executive’s authority to enforce laws at the border. Immigration law and refugee policy are beyond the scope of this course. Students might nonetheless consider whether the Court’s decisions on how the Fourth Amendment restricts (or does not restrict) executive discretion with respect to searches and seizures at the border shed light on what other border enforcement tactics are and are not (and should be or should not be) lawful. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.13%3A_Chapter_14_-_The_Warrant_Requirement-_Exceptions_%28Part_6%29.txt |
Warrant Exception: Checkpoints
In this chapter, we consider two situations in which the Court has authorized warrantless searches: (1) checkpoints, generally aimed at protecting the public from intoxicated drivers, and (2) “protective sweeps” that police may conduct in association with an arrest. Note that sweeps are distinct from searches incident to lawful arrest and are governed by different rules.
We begin with vehicle checkpoints. Checkpoints involve stopping cars randomly—or otherwise selecting cars to stop without any specific reason to believe that the drivers are intoxicated or otherwise breaking the law or transporting items subject to seizure. Accordingly, vehicle checkpoints can be permissible only if the Court allows police seizures of persons and property without even reasonable suspicion, much less probable cause. The question is whether such seizures are “reasonable” under the Fourth Amendment.
Supreme Court of the United States
Michigan State Police v. Rick Sitz
Decided June 14, 1990 – 496 U.S. 444
Chief Justice REHNQUIST delivered the opinion of the Court.
This case poses the question whether a State’s use of highway sobriety checkpoints violates the Fourth and Fourteenth Amendments to the United States Constitution. We hold that it does not and therefore reverse the contrary holding of the Court of Appeals of Michigan.
Petitioners, the Michigan Department of State Police and its director, established a sobriety checkpoint pilot program in early 1986. The director appointed a Sobriety Checkpoint Advisory Committee comprising representatives of the State Police force, local police forces, state prosecutors, and the University of Michigan Transportation Research Institute. Pursuant to its charge, the advisory committee created guidelines setting forth procedures governing checkpoint operations, site selection, and publicity.
Under the guidelines, checkpoints would be set up at selected sites along state roads. All vehicles passing through a checkpoint would be stopped and their drivers briefly examined for signs of intoxication. In cases where a checkpoint officer detected signs of intoxication, the motorist would be directed to a location out of the traffic flow where an officer would check the motorist’s driver’s license and car registration and, if warranted, conduct further sobriety tests. Should the field tests and the officer’s observations suggest that the driver was intoxicated, an arrest would be made. All other drivers would be permitted to resume their journey immediately.
The first—and to date the only—sobriety checkpoint operated under the program was conducted in Saginaw County with the assistance of the Saginaw County Sheriff’s Department. During the 75-minute duration of the checkpoint’s operation, 126 vehicles passed through the checkpoint. The average delay for each vehicle was approximately 25 seconds. Two drivers were detained for field sobriety testing, and one of the two was arrested for driving under the influence of alcohol. A third driver who drove through without stopping was pulled over by an officer in an observation vehicle and arrested for driving under the influence.
On the day before the operation of the Saginaw County checkpoint, respondents filed a complaint in the Circuit Court of Wayne County seeking declaratory and injunctive relief from potential subjection to the checkpoints. Each of the respondents “is a licensed driver in the State of Michigan … who regularly travels throughout the State in his automobile.” During pretrial proceedings, petitioners agreed to delay further implementation of the checkpoint program pending the outcome of this litigation.
After the trial, at which the court heard extensive testimony concerning, inter alia, the “effectiveness” of highway sobriety checkpoint programs, the court ruled that the Michigan program violated the Fourth Amendment. On appeal, the Michigan Court of Appeals affirmed the holding. After the Michigan Supreme Court denied petitioners’ application for leave to appeal, we granted certiorari.
Petitioners concede, correctly in our view, that a Fourth Amendment “seizure” occurs when a vehicle is stopped at a checkpoint. The question thus becomes whether such seizures are “reasonable” under the Fourth Amendment.
It is important to recognize what our inquiry is not about. No allegations are before us of unreasonable treatment of any person after an actual detention at a particular checkpoint. As pursued in the lower courts, the instant action challenges only the use of sobriety checkpoints generally. We address only the initial stop of each motorist passing through a checkpoint and the associated preliminary questioning and observation by checkpoint officers. Detention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard.
No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation’s roads are legion. The anecdotal is confirmed by the statistical. “Drunk drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million personal injuries and more than five billion dollars in property damage.”
Conversely, the weight bearing on the other scale—the measure of the intrusion on motorists stopped briefly at sobriety checkpoints—is slight. We reached a similar conclusion as to the intrusion on motorists subjected to a brief stop at a highway checkpoint for detecting illegal aliens. We see virtually no difference between the levels of intrusion on law-abiding motorists from the brief stops necessary to the effectuation of these two types of checkpoints, which to the average motorist would seem identical save for the nature of the questions the checkpoint officers might ask. The trial court and the Court of Appeals, thus, accurately gauged the “objective” intrusion, measured by the duration of the seizure and the intensity of the investigation, as minimal.
With respect to what it perceived to be the “subjective” intrusion on motorists, however, the Court of Appeals found such intrusion substantial. The court first affirmed the trial court’s finding that the guidelines governing checkpoint operation minimize the discretion of the officers on the scene. But the court also agreed with the trial court’s conclusion that the checkpoints have the potential to generate fear and surprise in motorists. This was so because the record failed to demonstrate that approaching motorists would be aware of their option to make U-turns or turnoffs to avoid the checkpoints. On that basis, the court deemed the subjective intrusion from the checkpoints unreasonable.
We believe the Michigan courts misread our cases concerning the degree of “subjective intrusion” and the potential for generating fear and surprise. The “fear and surprise” to be considered are not the natural fear of one who has been drinking over the prospect of being stopped at a sobriety checkpoint but, rather, the fear and surprise engendered in law-abiding motorists by the nature of the stop. This was made clear in Martinez-Fuerte.
Here, checkpoints are selected pursuant to the guidelines, and uniformed police officers stop every approaching vehicle. The intrusion resulting from the brief stop at the sobriety checkpoint is for constitutional purposes indistinguishable from the checkpoint stops we upheld in Martinez-Fuerte.
In sum, the balance of the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment. The judgment of the Michigan Court of Appeals is accordingly reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
Today, the Court rejects a Fourth Amendment challenge to a sobriety checkpoint policy in which police stop all cars and inspect all drivers for signs of intoxication without any individualized suspicion that a specific driver is intoxicated. The Court does so by balancing “the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped.” [T]he Court misapplies that test by undervaluing the nature of the intrusion and exaggerating the law enforcement need to use the roadblocks to prevent drunken driving.
I do not dispute the immense social cost caused by drunken drivers, nor do I slight the government’s efforts to prevent such tragic losses. Indeed, I would hazard a guess that today’s opinion will be received favorably by a majority of our society, who would willingly suffer the minimal intrusion of a sobriety checkpoint stop in order to prevent drunken driving. But consensus that a particular law enforcement technique serves a laudable purpose has never been the touchstone of constitutional analysis.
“The Fourth Amendment was designed not merely to protect against official intrusions whose social utility was less as measured by some ‘balancing test’ than its intrusion on individual privacy; it was designed in addition to grant the individual a zone of privacy whose protections could be breached only where the ‘reasonable’ requirements of the probable-cause standard were met. Moved by whatever momentary evil has aroused their fears, officials—perhaps even supported by a majority of citizens—may be tempted to conduct searches that sacrifice the liberty of each citizen to assuage the perceived evil. But the Fourth Amendment rests on the principle that a true balance between the individual and society depends on the recognition of ‘the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.’”
In the face of the “momentary evil” of drunken driving, the Court today abdicates its role as the protector of that fundamental right. I respectfully dissent.
Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join as to Parts I and II, dissenting.
A sobriety checkpoint is usually operated at night at an unannounced location. Surprise is crucial to its method. The test operation conducted by the Michigan State Police and the Saginaw County Sheriff’s Department began shortly after midnight and lasted until about 1 a.m. During that period, the 19 officers participating in the operation made two arrests and stopped and questioned 124 other unsuspecting and innocent drivers. It is, of course, not known how many arrests would have been made during that period if those officers had been engaged in normal patrol activities. However, the findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative.
Indeed, the record in this case makes clear that a decision holding these suspicionless seizures unconstitutional would not impede the law enforcement community’s remarkable progress in reducing the death toll on our highways. Because the Michigan program was patterned after an older program in Maryland, the trial judge gave special attention to that State’s experience. Over a period of several years, Maryland operated 125 checkpoints; of the 41,000 motorists passing through those checkpoints, only 143 persons (0.3%) were arrested. The number of man-hours devoted to these operations is not in the record, but it seems inconceivable that a higher arrest rate could not have been achieved by more conventional means. Yet, even if the 143 checkpoint arrests were assumed to involve a net increase in the number of drunken driving arrests per year, the figure would still be insignificant by comparison to the 71,000 such arrests made by Michigan State Police without checkpoints in 1984 alone.
Any relationship between sobriety checkpoints and an actual reduction in highway fatalities is even less substantial than the minimal impact on arrest rates. In light of these considerations, it seems evident that the Court today misapplies the balancing test. The Court overvalues the law enforcement interest in using sobriety checkpoints, undervalues the citizen’s interest in freedom from random, unannounced investigatory seizures, and mistakenly assumes that there is “virtually no difference” between a routine stop at a permanent, fixed checkpoint and a surprise stop at a sobriety checkpoint.
This is a case that is driven by nothing more than symbolic state action—an insufficient justification for an otherwise unreasonable program of random seizures. Unfortunately, the Court is transfixed by the wrong symbol—the illusory prospect of punishing countless intoxicated motorists—when it should keep its eyes on the road plainly marked by the Constitution.
I respectfully dissent.
* * *
In the next case, the Court considered whether the holding of Michigan v. Sitz allows police to conduct random (suspicionless) stops of vehicles to check whether they contain illegal drugs. While a checkpoint for “drugged” drivers would almost surely have been permissible for the same reasons that the Court permitted drunk driving checkpoints, the question of a checkpoint for contraband or other evidence of crime proved more controversial.
Supreme Court of the United States
City of Indianapolis v. James Edmond
Decided Nov. 28, 2000 – 531 U.S. 32
Justice O’CONNOR delivered the opinion of the Court.
In Michigan Dept. of State Police v. Sitz and United States v. Martinez-Fuerte, we held that brief, suspicionless seizures at highway checkpoints for the purposes of combating drunk driving and intercepting illegal immigrants were constitutional. We now consider the constitutionality of a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics.
I
In August 1998, the city of Indianapolis began to operate vehicle checkpoints on Indianapolis roads in an effort to interdict unlawful drugs. The city conducted six such roadblocks between August and November that year, stopping 1,161 vehicles and arresting 104 motorists. Fifty-five arrests were for drug-related crimes, while 49 were for offenses unrelated to drugs. The overall “hit rate” of the program was thus approximately nine percent.
The parties stipulated to the facts concerning the operation of the checkpoints by the Indianapolis Police Department (IPD) for purposes of the preliminary injunction proceedings instituted below. At each checkpoint location, the police stop a predetermined number of vehicles. Approximately 30 officers are stationed at the checkpoint. Pursuant to written directives issued by the chief of police, at least one officer approaches the vehicle, advises the driver that he or she is being stopped briefly at a drug checkpoint, and asks the driver to produce a license and registration. The officer also looks for signs of impairment and conducts an open-view examination of the vehicle from the outside. A narcotics-detection dog walks around the outside of each stopped vehicle.
The directives instruct the officers that they may conduct a search only by consent or based on the appropriate quantum of particularized suspicion. The officers must conduct each stop in the same manner until particularized suspicion develops, and the officers have no discretion to stop any vehicle out of sequence. The city agreed in the stipulation to operate the checkpoints in such a way as to ensure that the total duration of each stop, absent reasonable suspicion or probable cause, would be five minutes or less.
Respondents James Edmond and Joell Palmer were each stopped at a narcotics checkpoint in late September 1998. Respondents then filed a lawsuit on behalf of themselves and the class of all motorists who had been stopped or were subject to being stopped in the future at the Indianapolis drug checkpoints. Respondents claimed that the roadblocks violated the Fourth Amendment of the United States Constitution and the search and seizure provision of the Indiana Constitution. Respondents requested declaratory and injunctive relief for the class, as well as damages and attorney’s fees for themselves.
Respondents then moved for a preliminary injunction. Although respondents alleged that the officers who stopped them did not follow the written directives, they agreed to the stipulation concerning the operation of the checkpoints for purposes of the preliminary injunction proceedings. The parties also stipulated to certification of the plaintiff class. The United States District Court for the Southern District of Indiana agreed to class certification and denied the motion for a preliminary injunction, holding that the checkpoint program did not violate the Fourth Amendment. A divided panel of the United States Court of Appeals for the Seventh Circuit reversed, holding that the checkpoints contravened the Fourth Amendment. The panel denied rehearing. We granted certiorari and now affirm.
II
The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. While such suspicion is not an “irreducible” component of reasonableness, we have recognized only limited circumstances in which the usual rule does not apply. We have [] upheld brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens and at a sobriety checkpoint aimed at removing drunk drivers from the road. In addition we [have] suggested that a similar type of roadblock with the purpose of verifying drivers’ licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.
III
It is well established that a vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment. The fact that officers walk a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search. Just as in Place,1 an exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics. Like the dog sniff in Place, a sniff by a dog that simply walks around a car is “much less intrusive than a typical search.” Rather, what principally distinguishes these checkpoints from those we have previously approved is their primary purpose.
As petitioners concede, the Indianapolis checkpoint program unquestionably has the primary purpose of interdicting illegal narcotics. In their stipulation of facts, the parties repeatedly refer to the checkpoints as “drug checkpoints” and describe them as “being operated by the City of Indianapolis in an effort to interdict unlawful drugs in Indianapolis.” In addition, the first document attached to the parties’ stipulation is entitled “DRUG CHECKPOINT CONTACT OFFICER DIRECTIVES BY ORDER OF THE CHIEF OF POLICE.” These directives instruct officers to “[a]dvise the citizen that they are being stopped briefly at a drug checkpoint.” The second document attached to the stipulation is entitled “1998 Drug Road Blocks” and contains a statistical breakdown of information relating to the checkpoints conducted. Further, according to Sergeant DePew, the checkpoints are identified with lighted signs reading, “‘NARCOTICS CHECKPOINT ___ MILE AHEAD, NARCOTICS K–9 IN USE, BE PREPARED TO STOP.’” Finally, both the District Court and the Court of Appeals recognized that the primary purpose of the roadblocks is the interdiction of narcotics.
We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion. [E]ach of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment.
Petitioners propose several ways in which the narcotics-detection purpose of the instant checkpoint program may instead resemble the primary purposes of the checkpoints in Sitz and Martinez-Fuerte. Petitioners state that the checkpoints in those cases had the same ultimate purpose of arresting those suspected of committing crimes. Securing the border and apprehending drunk drivers are, of course, law enforcement activities, and law enforcement officers employ arrests and criminal prosecutions in pursuit of these goals. If we were to rest the case at this high level of generality, there would be little check on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose. Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life.
Petitioners also emphasize the severe and intractable nature of the drug problem as justification for the checkpoint program. There is no doubt that traffic in illegal narcotics creates social harms of the first magnitude. The law enforcement problems that the drug trade creates likewise remain daunting and complex, particularly in light of the myriad forms of spin-off crime that it spawns. The same can be said of various other illegal activities, if only to a lesser degree. But the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose. Rather, in determining whether individualized suspicion is required, we must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue. We are particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends.
Nor can the narcotics-interdiction purpose of the checkpoints be rationalized in terms of a highway safety concern similar to that present in Sitz. The detection and punishment of almost any criminal offense serves broadly the safety of the community, and our streets would no doubt be safer but for the scourge of illegal drugs. Only with respect to a smaller class of offenses, however, is society confronted with the type of immediate, vehicle-bound threat to life and limb that the sobriety checkpoint in Sitz was designed to eliminate.
The primary purpose of the Indianapolis narcotics checkpoints is in the end to advance “the general interest in crime control.” We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes. We cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.
Of course, there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control. For example, as the Court of Appeals noted, the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route. The exigencies created by these scenarios are far removed from the circumstances under which authorities might simply stop cars as a matter of course to see if there just happens to be a felon leaving the jurisdiction. While we do not limit the purposes that may justify a checkpoint program to any rigid set of categories, we decline to approve a program whose primary purpose is ultimately indistinguishable from the general interest in crime control.
Petitioners argue that the Indianapolis checkpoint program is justified by its lawful secondary purposes of keeping impaired motorists off the road and verifying licenses and registrations. If this were the case, however, law enforcement authorities would be able to establish checkpoints for virtually any purpose so long as they also included a license or sobriety check. For this reason, we examine the available evidence to determine the primary purpose of the checkpoint program. While we recognize the challenges inherent in a purpose inquiry, courts routinely engage in this enterprise in many areas of constitutional jurisprudence as a means of sifting abusive governmental conduct from that which is lawful. As a result, a program driven by an impermissible purpose may be proscribed while a program impelled by licit purposes is permitted, even though the challenged conduct may be outwardly similar. While reasonableness under the Fourth Amendment is predominantly an objective inquiry, our special needs and administrative search cases demonstrate that purpose is often relevant when suspicionless intrusions pursuant to a general scheme are at issue.
It goes without saying that our holding today does nothing to alter the constitutional status of the sobriety and border checkpoints that we approved in Sitz and Martinez-Fuerte. The constitutionality of such checkpoint programs still depends on a balancing of the competing interests at stake and the effectiveness of the program. When law enforcement authorities pursue primarily general crime control purposes at checkpoints such as here, however, stops can only be justified by some quantum of individualized suspicion.
Our holding also does not affect the validity of border searches or searches at places like airports and government buildings, where the need for such measures to ensure public safety can be particularly acute. Nor does our opinion speak to other intrusions aimed primarily at purposes beyond the general interest in crime control. Our holding also does not impair the ability of police officers to act appropriately upon information that they properly learn during a checkpoint stop justified by a lawful primary purpose, even where such action may result in the arrest of a motorist for an offense unrelated to that purpose. Finally, we caution that the purpose inquiry in this context is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene.
Because the primary purpose of the Indianapolis checkpoint program is ultimately indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment. The judgment of the Court of Appeals is, accordingly, affirmed.
Chief Justice REHNQUIST, with whom Justice THOMAS joins, and with whom Justice SCALIA joins as to Part I, dissenting.
The State’s use of a drug-sniffing dog, according to the Court’s holding, annuls what is otherwise plainly constitutional under our Fourth Amendment jurisprudence: brief, standardized, discretionless, roadblock seizures of automobiles, seizures which effectively serve a weighty state interest with only minimal intrusion on the privacy of their occupants. Because these seizures serve the State’s accepted and significant interests of preventing drunken driving and checking for driver’s licenses and vehicle registrations, and because there is nothing in the record to indicate that the addition of the dog sniff lengthens these otherwise legitimate seizures, I dissent.
As it is nowhere to be found in the Court’s opinion, I begin with blackletter roadblock seizure law. “The principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop.” Roadblock seizures are consistent with the Fourth Amendment if they are “carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Specifically, the constitutionality of a seizure turns upon “a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.”
We first applied these principles in Martinez-Fuerte, which approved highway checkpoints for detecting illegal aliens. In Michigan Dept. of State Police v. Sitz, we upheld the State’s use of a highway sobriety checkpoint after applying the framework set out in Martinez-Fuerte. This case follows naturally from Martinez-Fuerte and Sitz. Petitioners acknowledge that the “primary purpose” of these roadblocks is to interdict illegal drugs, but this fact should not be controlling. Even accepting the Court’s conclusion that the checkpoints at issue in Martinez-Fuerte and Sitz were not primarily related to criminal law enforcement, the question whether a law enforcement purpose could support a roadblock seizure is not presented in this case. The District Court found that another “purpose of the checkpoints is to check driver’s licenses and vehicle registrations,” and the written directives state that the police officers are to “[l]ook for signs of impairment.” The use of roadblocks to look for signs of impairment was validated by Sitz, and the use of roadblocks to check for driver’s licenses and vehicle registrations was expressly recognized in Delaware v. Prouse, 440 U.S.648 (1979). That the roadblocks serve these legitimate state interests cannot be seriously disputed, as the 49 people arrested for offenses unrelated to drugs can attest. And it would be speculative to conclude—given the District Court’s findings, the written directives, and the actual arrests—that petitioners would not have operated these roadblocks but for the State’s interest in interdicting drugs.
Because of the valid reasons for conducting these roadblock seizures, it is constitutionally irrelevant that petitioners also hoped to interdict drugs. Once the constitutional requirements for a particular seizure are satisfied, the subjective expectations of those responsible for it, be it police officers or members of a city council, are irrelevant. It is the objective effect of the State’s actions on the privacy of the individual that animates the Fourth Amendment. Because the objective intrusion of a valid seizure does not turn upon anyone’s subjective thoughts, neither should our constitutional analysis.
With these checkpoints serving two important state interests, the remaining prongs of the balancing test are easily met. The seizure is objectively reasonable as it lasts, on average, two to three minutes and does not involve a search. The subjective intrusion is likewise limited as the checkpoints are clearly marked and operated by uniformed officers who are directed to stop every vehicle in the same manner. The only difference between this case and Sitz is the presence of the dog. We have already held, however, that a “sniff test” by a trained narcotics dog is not a “search” within the meaning of the Fourth Amendment because it does not require physical intrusion of the object being sniffed and it does not expose anything other than the contraband items. And there is nothing in the record to indicate that the dog sniff lengthens the stop. Finally, the checkpoints’ success rate—49 arrests for offenses unrelated to drugs—only confirms the State’s legitimate interests in preventing drunken driving and ensuring the proper licensing of drivers and registration of their vehicles.
These stops effectively serve the State’s legitimate interests; they are executed in a regularized and neutral manner; and they only minimally intrude upon the privacy of the motorists. They should therefore be constitutional.
* * *
In the next case, the Court considered a police checkpoint designed to find witnesses of a recent crime—a hit-and-run crash. Like Indianapolis v. Edmond, and unlike Michigan v. Sitz, the case involved stopping vehicles without any purpose of protecting the public from immediate hazards presented by their drivers. However, unlike Edmond, police did not hope to find evidence of wrongdoing by the drivers; instead, they hoped to learn whether the drivers had seen wrongdoing by someone else.
Supreme Court of the United States
Illinois v. Robert S. Lidster
Decided Jan. 13, 2004 – 540 U.S. 419
Justice BREYER delivered the opinion of the Court.
This Fourth Amendment case focuses upon a highway checkpoint where police stopped motorists to ask them for information about a recent hit-and-run accident. We hold that the police stops were reasonable, hence, constitutional.
I
The relevant background is as follows: On Saturday, August 23, 1997, just after midnight, an unknown motorist traveling eastbound on a highway in Lombard, Illinois, struck and killed a 70–year–old bicyclist. The motorist drove off without identifying himself. About one week later at about the same time of night and at about the same place, local police set up a highway checkpoint designed to obtain more information about the accident from the motoring public.
Police cars with flashing lights partially blocked the eastbound lanes of the highway. The blockage forced traffic to slow down, leading to lines of up to 15 cars in each lane. As each vehicle drew up to the checkpoint, an officer would stop it for 10 to 15 seconds, ask the occupants whether they had seen anything happen there the previous weekend, and hand each driver a flyer. The flyer said “ALERT … FATAL HIT & RUN ACCIDENT” and requested “ASSISTANCE IN IDENTIFYING THE VEHICLE AND DRIVER INVOLVED IN THIS ACCIDENT WHICH KILLED A 70 YEAR OLD BICYCLIST.”
Robert Lidster, the respondent, drove a minivan toward the checkpoint. As he approached the checkpoint, his van swerved, nearly hitting one of the officers. The officer smelled alcohol on Lidster’s breath. He directed Lidster to a side street where another officer administered a sobriety test and then arrested Lidster. Lidster was tried and convicted in Illinois state court of driving under the influence of alcohol.
Lidster challenged the lawfulness of his arrest and conviction on the ground that the government had obtained much of the relevant evidence through use of a checkpoint stop that violated the Fourth Amendment. The trial court rejected that challenge. But an Illinois appellate court reached the opposite conclusion. The Illinois Supreme Court agreed with the appellate court.
[W]e granted certiorari. We now reverse the Illinois Supreme Court’s determination.
II
The Illinois Supreme Court basically held that our decision in Edmond governs the outcome of this case. We do not agree. Edmond involved a checkpoint at which police stopped vehicles to look for evidence of drug crimes committed by occupants of those vehicles.
The checkpoint stop here differs significantly from that in Edmond. The stop’s primary law enforcement purpose was not to determine whether a vehicle’s occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle’s occupants, but other individuals.
Edmond’s language, as well as its context, makes clear that the constitutionality of this latter, information-seeking kind of stop was not then before the Court. Neither do we believe, Edmond aside, that the Fourth Amendment would have us apply an Edmond-type rule of automatic unconstitutionality to brief, information-seeking highway stops of the kind now before us. For one thing, the fact that such stops normally lack individualized suspicion cannot by itself determine the constitutional outcome. As in Edmond, the stop here at issue involves a motorist. The Fourth Amendment does not treat a motorist’s car as his castle. And special law enforcement concerns will sometimes justify highway stops without individualized suspicion. Moreover, unlike Edmond, the context here (seeking information from the public) is one in which, by definition, the concept of individualized suspicion has little role to play. Like certain other forms of police activity, say, crowd control or public safety, an information-seeking stop is not the kind of event that involves suspicion, or lack of suspicion, of the relevant individual.
For another thing, information-seeking highway stops are less likely to provoke anxiety or to prove intrusive. The stops are likely brief. The police are not likely to ask questions designed to elicit self-incriminating information. And citizens will often react positively when police simply ask for their help as “responsible citizen[s]” to “give whatever information they may have to aid in law enforcement.
Further, the law ordinarily permits police to seek the voluntary cooperation of members of the public in the investigation of a crime. “[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen.” That, in part, is because voluntary requests play a vital role in police investigatory work.
The importance of soliciting the public’s assistance is offset to some degree by the need to stop a motorist to obtain that help—a need less likely present where a pedestrian, not a motorist, is involved. The difference is significant in light of our determinations that such an involuntary stop amounts to a “seizure” in Fourth Amendment terms. That difference, however, is not important enough to justify an Edmond-type rule here. After all, as we have said, the motorist stop will likely be brief. Any accompanying traffic delay should prove no more onerous than many that typically accompany normal traffic congestion. And the resulting voluntary questioning of a motorist is as likely to prove important for police investigation as is the questioning of a pedestrian. Given these considerations, it would seem anomalous were the law (1) ordinarily to allow police freely to seek the voluntary cooperation of pedestrians but (2) ordinarily to forbid police to seek similar voluntary cooperation from motorists.
Finally, we do not believe that an Edmond-type rule is needed to prevent an unreasonable proliferation of police checkpoints. Practical considerations—namely, limited police resources and community hostility to related traffic tieups—seem likely to inhibit any such proliferation. And, of course, the Fourth Amendment’s normal insistence that the stop be reasonable in context will still provide an important legal limitation on police use of this kind of information-seeking checkpoint.
These considerations, taken together, convince us that an Edmond-type presumptive rule of unconstitutionality does not apply here. That does not mean the stop is automatically, or even presumptively, constitutional. It simply means that we must judge its reasonableness, hence, its constitutionality, on the basis of the individual circumstances. And as this Court said in Brown v. Texas, 443 U.S.47 (1979), in judging reasonableness, we look to “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.”
III
We now consider the reasonableness of the checkpoint stop before us in light of the factors just mentioned, an issue that, in our view, has been fully argued here. We hold that the stop was constitutional.
The relevant public concern was grave. Police were investigating a crime that had resulted in a human death. No one denies the police’s need to obtain more information at that time. And the stop’s objective was to help find the perpetrator of a specific and known crime, not of unknown crimes of a general sort.
The stop advanced this grave public concern to a significant degree. The police appropriately tailored their checkpoint stops to fit important criminal investigatory needs. The stops took place about one week after the hit-and-run accident, on the same highway near the location of the accident, and at about the same time of night. And police used the stops to obtain information from drivers, some of whom might well have been in the vicinity of the crime at the time it occurred.
Most importantly, the stops interfered only minimally with liberty of the sort the Fourth Amendment seeks to protect. Viewed objectively, each stop required only a brief wait in line—a very few minutes at most. Contact with the police lasted only a few seconds. Police contact consisted simply of a request for information and the distribution of a flyer. Viewed subjectively, the contact provided little reason for anxiety or alarm. The police stopped all vehicles systematically. And there is no allegation here that the police acted in a discriminatory or otherwise unlawful manner while questioning motorists during stops.
For these reasons we conclude that the checkpoint stop was constitutional.
The judgment of the Illinois Supreme Court is [r]eversed.
Notes, Comments, and Questions
The Court made clear in Indianapolis v. Edmond that police may not establish checkpoints to investigate whether drivers are transporting illegal drugs. Consider a department that responds as follows:
Police post signs with text like “Drug Checkpoint Ahead” on public highways. Then, after observing drivers who promptly exit the highway after passing the sign, officers investigate the drivers for drug activity. Lawful? Why or why not?
See, e.g., United States v. Williams, 359 F.3d 1019 (8th Cir. 2004) (holding that because “there was no checkpoint,” Edmond did not apply); United States v. Neff, 681 F.3d 1134 (10th Cir. 2012) (holding that the fake-checkpoint ruse was lawful but that “standing alone,” a driver’s choice to exit after seeing the sign “is insufficient to justify even a brief investigatory detention of a vehicle”); compare State v. Mack, 66 S.W.3d 706 (Mo. 2002) (finding that “it is reasonable to conclude that drivers with drugs would ‘take the bait’ and exit” and holding that stop was reasonable in part because “the checkpoint was set up in an isolated and sparsely populated area offering no services to motorists and was conducted on an evening that would otherwise have little traffic”); with id. at 710 (Stith, J., dissenting) (arguing that seizure was unreasonable under Edmond).
If a driver exiting the highway immediately after passing a “drug checkpoint ahead” sign is not sufficient to provide reasonable suspicion to justify a vehicle stop (as the Tenth Circuit held), what else should be necessary to justify the stop? In other words, what else must an officer observe after the car exits?
This tactic has attracted attention from the surveilled community. See, e.g., Steve Elliot, “Cops Set Up Fake ‘Drug Checkpoint’ Signs; Detain and Search Drivers Who React,” Toke Signals (Jan. 28, 2014); TJ Green, “Fake Drug Checkpoints Are Becoming More Devious,” Weed Blog (May 3, 2012).
Warrant Exception: Protective Sweeps
Our final case for this chapter concerns “protective sweeps,” which police may conduct along with an arrest to protect themselves and others from potential attackers who may be lying in wait. Students should carefully note how the protective sweeps doctrine differs from that regulating searches incident to lawful arrests.
Supreme Court of the United States
Maryland v. Jerome Edward Buie
Decided Feb. 28, 1990 – 494 U.S. 325
Justice WHITE delivered the opinion of the Court.
A “protective sweep” is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. In this case we must decide what level of justification is required by the Fourth and Fourteenth Amendments before police officers, while effecting the arrest of a suspect in his home pursuant to an arrest warrant, may conduct a warrantless protective sweep of all or part of the premises. The Court of Appeals of Maryland held that a running suit seized in plain view during such a protective sweep should have been suppressed at respondent’s armed robbery trial because the officer who conducted the sweep did not have probable cause to believe that a serious and demonstrable potentiality for danger existed. We conclude that the Fourth Amendment would permit the protective sweep undertaken here if the searching officer “possesse[d] a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[ed]’ the officer in believing” that the area swept harbored an individual posing a danger to the officer or others. We accordingly vacate the judgment below and remand for application of this standard.
I
On February 3, 1986, two men committed an armed robbery of a Godfather’s Pizza restaurant in Prince George’s County, Maryland. One of the robbers was wearing a red running suit. That same day, Prince George’s County police obtained arrest warrants for respondent Jerome Edward Buie and his suspected accomplice in the robbery, Lloyd Allen. Buie’s house was placed under police surveillance.
On February 5, the police executed the arrest warrant for Buie. They first had a police department secretary telephone Buie’s house to verify that he was home. The secretary spoke to a female first, then to Buie himself. Six or seven officers proceeded to Buie’s house. Once inside, the officers fanned out through the first and second floors. Corporal James Rozar announced that he would “freeze” the basement so that no one could come up and surprise the officers. With his service revolver drawn, Rozar twice shouted into the basement, ordering anyone down there to come out. When a voice asked who was calling, Rozar announced three times: “this is the police, show me your hands.” Eventually, a pair of hands appeared around the bottom of the stairwell and Buie emerged from the basement. He was arrested, searched, and handcuffed by Rozar. Thereafter, Detective Joseph Frolich entered the basement “in case there was someone else” down there. He noticed a red running suit lying in plain view on a stack of clothing and seized it.
The trial court denied Buie’s motion to suppress the running suit, stating in part: “The man comes out from a basement, the police don’t know how many other people are down there. He is charged with a serious offense.” The State introduced the running suit into evidence at Buie’s trial. A jury convicted Buie of robbery with a deadly weapon and using a handgun in the commission of a felony.
The Court of Special Appeals of Maryland affirmed the trial court’s denial of the suppression motion. The court stated that Detective Frolich did not go into the basement to search for evidence, but to look for the suspected accomplice or anyone else who might pose a threat to the officers on the scene.
The Court of Appeals of Maryland reversed by a 4-to-3 vote. The court acknowledged that “when the intrusion is slight, as in the case of a brief stop and frisk on a public street, and the public interest in prevention of crime is substantial, reasonable articulable suspicion may be enough to pass constitutional muster.” The court, however, stated that when the sanctity of the home is involved, the exceptions to the warrant requirement are few, and held: “[T]o justify a protective sweep of a home, the government must show that there is probable cause to believe that ‘“a serious and demonstrable potentiality for danger”’ exists.” The court went on to find that the State had not satisfied that probable-cause requirement.
II
It is not disputed that until the point of Buie’s arrest the police had the right, based on the authority of the arrest warrant, to search anywhere in the house that Buie might have been found, including the basement. “If there is sufficient evidence of a citizen’s participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law.” There is also no dispute that if Detective Frolich’s entry into the basement was lawful, the seizure of the red running suit, which was in plain view and which the officer had probable cause to believe was evidence of a crime, was also lawful under the Fourth Amendment. The issue in this case is what level of justification the Fourth Amendment required before Detective Frolich could legally enter the basement to see if someone else was there.
Petitioner, the State of Maryland, argues that, under a general reasonableness balancing test, police should be permitted to conduct a protective sweep whenever they make an in-home arrest for a violent crime.
III
It goes without saying that the Fourth Amendment bars only unreasonable searches and seizures. Our cases show that in determining reasonableness, we have balanced the intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests. Under this test, a search of the house or office is generally not reasonable without a warrant issued on probable cause. There are other contexts, however, where the public interest is such that neither a warrant nor probable cause is required.
Possessing an arrest warrant and probable cause to believe Buie was in his home, the officers were entitled to enter and to search anywhere in the house in which Buie might be found. Once he was found, however, the search for him was over, and there was no longer that particular justification for entering any rooms that had not yet been searched.
That Buie had an expectation of privacy in those remaining areas of his house, however, does not mean such rooms were immune from entry. In the instant case, there is an [] interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter. A protective sweep, in contrast, occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s “turf.” An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.
We agree with the State, as did the court below, that a warrant was not required. We also hold that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. This is no more and no less than was required in Terry and Long, and as in those cases, we think this balance is the proper one.2
We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.
IV
The type of search we authorize today is far removed from the “top-to-bottom” search involved in Chimel; moreover, it is decidedly not “automati[c],” but may be conducted only when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.
V
We conclude that by requiring a protective sweep to be justified by probable cause to believe that a serious and demonstrable potentiality for danger existed, the Court of Appeals of Maryland applied an unnecessarily strict Fourth Amendment standard. The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. We therefore vacate the judgment below and remand this case to the Court of Appeals of Maryland for further proceedings not inconsistent with this opinion.
Justice STEVENS, concurring.
Today the Court holds that reasonable suspicion, rather than probable cause, is necessary to support a protective sweep while an arrest is in progress. I agree with that holding and with the Court’s opinion, but I believe it is important to emphasize that the standard applies only to protective sweeps. Officers conducting such a sweep must have a reasonable basis for believing that their search will reduce the danger of harm to themselves or of violent interference with their mission; in short, the search must be protective.
In this case, to justify Officer Frolich’s entry into the basement, it is the State’s burden to demonstrate that the officers had a reasonable basis for believing not only that someone in the basement might attack them or otherwise try to interfere with the arrest, but also that it would be safer to go down the stairs instead of simply guarding them from above until respondent had been removed from the house. The fact that respondent offered no resistance when he emerged from the basement is somewhat inconsistent with the hypothesis that the danger of an attack by a hidden confederate persisted after the arrest. Moreover, Officer Rozar testified that he was not worried about any possible danger when he arrested Buie.
Indeed, were the officers concerned about safety, one would expect them to do what Officer Rozar did before the arrest: guard the basement door to prevent surprise attacks. As the Court indicates, Officer Frolich might, at the time of the arrest, reasonably have “look[ed] in” the already open basement door to ensure that no accomplice had followed Buie to the stairwell. But Officer Frolich did not merely “look in” the basement; he entered it. That strategy is sensible if one wishes to search the basement. It is a surprising choice for an officer, worried about safety, who need not risk entering the stairwell at all.
The State may thus face a formidable task on remand. However, the Maryland courts are better equipped than are we to review the record.
Justice KENNEDY, concurring.
The Court adopts the prudent course of explaining the general rule and permitting the state court to apply it in the first instance. The concurrence by JUSTICE STEVENS, however, makes the gratuitous observation that the State has a formidable task on remand. My view is quite to the contrary. Based on my present understanding of the record, I should think the officers’ conduct here was in full accord with standard police safety procedure, and that the officers would have been remiss if they had not taken these precautions. This comment is necessary, lest by acquiescence the impression be left that JUSTICE STEVENS’ views can be interpreted as authoritative guidance for application of our ruling to the facts of the case.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
While the Fourth Amendment protects a person’s privacy interests in a variety of settings, “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” The Court discounts the nature of the intrusion because it believes that the scope of the intrusion is limited. The Court explains that a protective sweep’s scope is “narrowly confined to a cursory visual inspection of those places in which a person might be hiding” and confined in duration to a period “no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” But these spatial and temporal restrictions are not particularly limiting. A protective sweep would bring within police purview virtually all personal possessions within the house not hidden from view in a small enclosed space. Police officers searching for potential ambushers might enter every room including basements and attics; open up closets, lockers, chests, wardrobes, and cars; and peer under beds and behind furniture. The officers will view letters, documents, and personal effects that are on tables or desks or are visible inside open drawers; books, records, tapes, and pictures on shelves; and clothing, medicines, toiletries and other paraphernalia not carefully stored in dresser drawers or bathroom cupboards. While perhaps not a “full-blown” or “top-to-bottom” search, a protective sweep is much closer to it than to a “limited patdown for weapons” or a “‘frisk’ of an automobile.”
In light of the special sanctity of a private residence and the highly intrusive nature of a protective sweep, I firmly believe that police officers must have probable cause to fear that their personal safety is threatened by a hidden confederate of an arrestee before they may sweep through the entire home. Given the state-court determination that the officers searching Buie’s home lacked probable cause to perceive such a danger and therefore were not lawfully present in the basement, I would affirm the state court’s decision to suppress the incriminating evidence. I respectfully dissent.
Notes, Comments, and Questions
When comparing lawful “protective sweeps” with searches incident to lawful arrest, students should note (1) the physical scope of a protective sweep will often extend beyond the area in which a SILA is permissible, (2) because sweeps are permitted only to protect against dangers to those present during the arrest, police may search only areas in which an officer may reasonably suspect a person could be found, and (3) the searches must be “cursory inspections” of those spaces.
An open question related to prospective sweeps concerns whether police may conduct them upon entering a house with consent—or in other contexts unrelated to arrests.3 Federal courts have reached divergent results.
Imagine police are investigating a brutal murder of a gang member and suspect that a rival gang is responsible. They obtain consent to enter the home of a witness in a “high-crime” neighborhood. May they “sweep” the house upon entry? Why or why not?
Consider a slightly modified version of the problem presented above. Here, police are investigating an allegation of insider trading that violates federal securities law. They obtain consent to enter the home of a witness in an exclusive gated community. May they “sweep” the house upon entry? Why or why not?
For courts permitting sweeps absent arrests, see, e.g., United States v. Fadual, 16 F. Supp. 3d 270 (S.D.N.Y. 2014) (holding that “under certain circumstances, law enforcement officers may engage in a protective sweep where they gained entry through consent in the first instance” but that the sweep at issue was not lawful); United States v. Miller, 430 F.3d 93, 95 (2d Cir. 2005) (allowing sweeps made by the police pursuant to “lawful process, such as an order permitting or directing the officer to enter for the purpose of protecting a third party”); United States v. Gould, 364 F.3d 578 (5th Cir. 2004) (allowing sweep of mobile home entered by police with consent). For courts holding sweeps unlawful absent an arrest, see, e.g., United States v. Torres-Castro, 470 F.3d 992 (10th Cir. 2006) (“Following Buie, we held that such ‘protective sweeps’ are only permitted incident to an arrest.”); United States v. Waldner, 425 F.3d 514, 517 (8th Cir. 2005) (declining the invitation to “extend Buie further”); United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000) (holding search cannot be justified as protective sweep because when it occurred suspect “was not under arrest”). | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.14%3A_Chapter_15_-_The_Warrant_Requirement-_Exceptions_%28Part_7%29.txt |
Warrant Exception: Searches of Students & Public Employees
Although law enforcement officers conduct the bulk of the searches and seizures covered in this book, other government agents also perform searches and seizures outside the context of normal policing. In this chapter, we consider searches of public school students and public employees.
In public schools, teachers and other school officials must conduct searches to promote safety and to foster an environment conducive to education. Yet students do not forfeit all rights at school, and some searches of students and their effects are unreasonable. (Note that because the Fourth Amendment regulates only state actors, private school students are not protected against “unreasonable” school searches, unless the government is somehow involved.)
Supreme Court of the United States
New Jersey v. T.L.O.
Decided Jan. 15, 1985 – 469 U.S. 325
Justice WHITE delivered the opinion of the Court.
We granted certiorari in this case to examine the appropriateness of the exclusionary rule as a remedy for searches carried out in violation of the Fourth Amendment by public school authorities. Our consideration of the proper application of the Fourth Amendment to the public schools, however, has led us to conclude that the search that gave rise to the case now before us did not violate the Fourth Amendment. Accordingly, we here address only the questions of the proper standard for assessing the legality of searches conducted by public school officials and the application of that standard to the facts of this case.
I
On March 7, 1980, a teacher at Piscataway High School in Middlesex County, N.J., discovered two girls smoking in a lavatory. One of the two girls was the respondent T.L.O., who at that time was a 14-year-old high school freshman. Because smoking in the lavatory was a violation of a school rule, the teacher took the two girls to the Principal’s office, where they met with Assistant Vice Principal Theodore Choplick. In response to questioning by Mr. Choplick, T.L.O.’s companion admitted that she had violated the rule. T.L.O., however, denied that she had been smoking in the lavatory and claimed that she did not smoke at all.
Mr. Choplick asked T.L.O. to come into his private office and demanded to see her purse. Opening the purse, he found a pack of cigarettes, which he removed from the purse and held before T.L.O. as he accused her of having lied to him. As he reached into the purse for the cigarettes, Mr. Choplick also noticed a package of cigarette rolling papers. In his experience, possession of rolling papers by high school students was closely associated with the use of marihuana. Suspecting that a closer examination of the purse might yield further evidence of drug use, Mr. Choplick proceeded to search the purse thoroughly. The search revealed a small amount of marihuana, a pipe, a number of empty plastic bags, a substantial quantity of money in one-dollar bills, an index card that appeared to be a list of students who owed T.L.O. money, and two letters that implicated T.L.O. in marihuana dealing.
Mr. Choplick notified T.L.O.’s mother and the police, and turned the evidence of drug dealing over to the police. At the request of the police, T.L.O.’s mother took her daughter to police headquarters, where T.L.O. confessed that she had been selling marihuana at the high school. On the basis of the confession and the evidence seized by Mr. Choplick, the State brought delinquency charges against T.L.O. in the Juvenile and Domestic Relations Court of Middlesex County. Contending that Mr. Choplick’s search of her purse violated the Fourth Amendment, T.L.O. moved to suppress the evidence found in her purse as well as her confession, which, she argued, was tainted by the allegedly unlawful search. The Juvenile Court denied the motion to suppress. Although the court concluded that the Fourth Amendment did apply to searches carried out by school officials, … the court concluded that the search conducted by Mr. Choplick was a reasonable one. The initial decision to open the purse was justified by Mr. Choplick’s well-founded suspicion that T.L.O. had violated the rule forbidding smoking in the lavatory. Once the purse was open, evidence of marihuana violations was in plain view, and Mr. Choplick was entitled to conduct a thorough search to determine the nature and extent of T.L.O.’s drug-related activities. Having denied the motion to suppress, the court on March 23, 1981, found T.L.O. to be a delinquent and on January 8, 1982, sentenced her to a year’s probation.
On appeal from the final judgment of the Juvenile Court, a divided Appellate Division affirmed the trial court’s finding that there had been no Fourth Amendment violation. T.L.O. appealed the Fourth Amendment ruling, and the Supreme Court of New Jersey reversed the judgment of the Appellate Division and ordered the suppression of the evidence found in T.L.O.’s purse.
We granted the State of New Jersey’s petition for certiorari. Although we originally granted certiorari to decide the issue of the appropriate remedy in juvenile court proceedings for unlawful school searches, our doubts regarding the wisdom of deciding that question in isolation from the broader question of what limits, if any, the Fourth Amendment places on the activities of school authorities prompted us to order reargument on that question. Having heard argument on the legality of the search of T.L.O.’s purse, we are satisfied that the search did not violate the Fourth Amendment.
II
In determining whether the search at issue in this case violated the Fourth Amendment, we are faced initially with the question whether that Amendment’s prohibition on unreasonable searches and seizures applies to searches conducted by public school officials. We hold that it does.
It is now beyond dispute that “the Federal Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers.” Equally indisputable is the proposition that the Fourteenth Amendment protects the rights of students against encroachment by public school officials.
These two propositions—that the Fourth Amendment applies to the States through the Fourteenth Amendment, and that the actions of public school officials are subject to the limits placed on state action by the Fourteenth Amendment—might appear sufficient to answer the suggestion that the Fourth Amendment does not proscribe unreasonable searches by school officials. On reargument, however, the State of New Jersey has argued that the history of the Fourth Amendment indicates that the Amendment was intended to regulate only searches and seizures carried out by law enforcement officers; accordingly, although public school officials are concededly state agents for purposes of the Fourteenth Amendment, the Fourth Amendment creates no rights enforceable against them.
[T]his Court has never limited the Amendment’s prohibition on unreasonable searches and seizures to operations conducted by the police. Rather, the Court has long spoken of the Fourth Amendment’s strictures as restraints imposed upon “governmental action”—that is, “upon the activities of sovereign authority.” Accordingly, we have held the Fourth Amendment applicable to the activities of civil as well as criminal authorities: building inspectors, Occupational Safety and Health Act inspectors, and even firemen entering privately owned premises to battle a fire, are all subject to the restraints imposed by the Fourth Amendment. Because the individual’s interest in privacy and personal security “suffers whether the government’s motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards,” it would be “anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.”
Notwithstanding the general applicability of the Fourth Amendment to the activities of civil authorities, a few courts have concluded that school officials are exempt from the dictates of the Fourth Amendment by virtue of the special nature of their authority over schoolchildren. Teachers and school administrators, it is said, act in loco parentis in their dealings with students: their authority is that of the parent, not the State, and is therefore not subject to the limits of the Fourth Amendment.
Such reasoning is in tension with contemporary reality and the teachings of this Court. We have held school officials subject to the commands of the First Amendment, and the Due Process Clause of the Fourteenth Amendment. If school authorities are state actors for purposes of the constitutional guarantees of freedom of expression and due process, it is difficult to understand why they should be deemed to be exercising parental rather than public authority when conducting searches of their students. More generally, the Court has recognized that “the concept of parental delegation” as a source of school authority is not entirely “consonant with compulsory education laws.” Today’s public school officials do not merely exercise authority voluntarily conferred on them by individual parents; rather, they act in furtherance of publicly mandated educational and disciplinary policies. In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents’ immunity from the strictures of the Fourth Amendment.
III
To hold that the Fourth Amendment applies to searches conducted by school authorities is only to begin the inquiry into the standards governing such searches. Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place. The determination of the standard of reasonableness governing any specific class of searches requires “balancing the need to search against the invasion which the search entails.” On one side of the balance are arrayed the individual’s legitimate expectations of privacy and personal security; on the other, the government’s need for effective methods to deal with breaches of public order.
We have recognized that even a limited search of the person is a substantial invasion of privacy. We have also recognized that searches of closed items of personal luggage are intrusions on protected privacy interests, for “the Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view.” A search of a child’s person or of a closed purse or other bag carried on her person, no less than a similar search carried out on an adult, is undoubtedly a severe violation of subjective expectations of privacy.
Of course, the Fourth Amendment does not protect subjective expectations of privacy that are unreasonable or otherwise “illegitimate.” To receive the protection of the Fourth Amendment, an expectation of privacy must be one that society is “prepared to recognize as legitimate.” The State of New Jersey has argued that because of the pervasive supervision to which children in the schools are necessarily subject, a child has virtually no legitimate expectation of privacy in articles of personal property “unnecessarily” carried into a school. This argument has two factual premises: (1) the fundamental incompatibility of expectations of privacy with the maintenance of a sound educational environment; and (2) the minimal interest of the child in bringing any items of personal property into the school. Both premises are severely flawed.
Although this Court may take notice of the difficulty of maintaining discipline in the public schools today, the situation is not so dire that students in the schools may claim no legitimate expectations of privacy. We have recently recognized that the need to maintain order in a prison is such that prisoners retain no legitimate expectations of privacy in their cells, but it goes almost without saying that “[t]he prisoner and the schoolchild stand in wholly different circumstances, separated by the harsh facts of criminal conviction and incarceration.” We are not yet ready to hold that the schools and the prisons need be equated for purposes of the Fourth Amendment.
Nor does the State’s suggestion that children have no legitimate need to bring personal property into the schools seem well anchored in reality. Students at a minimum must bring to school not only the supplies needed for their studies, but also keys, money, and the necessaries of personal hygiene and grooming. In addition, students may carry on their persons or in purses or wallets such nondisruptive yet highly personal items as photographs, letters, and diaries. Finally, students may have perfectly legitimate reasons to carry with them articles of property needed in connection with extracurricular or recreational activities. In short, schoolchildren may find it necessary to carry with them a variety of legitimate, noncontraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items merely by bringing them onto school grounds.
Against the child’s interest in privacy must be set the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds. Maintaining order in the classroom has never been easy, but in recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems. Even in schools that have been spared the most severe disciplinary problems, the preservation of order and a proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult. “Events calling for discipline are frequent occurrences and sometimes require immediate, effective action.” Accordingly, we have recognized that maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student-teacher relationship.
How, then, should we strike the balance between the schoolchild’s legitimate expectations of privacy and the school’s equally legitimate need to maintain an environment in which learning can take place? It is evident that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject. The warrant requirement, in particular, is unsuited to the school environment: requiring a teacher to obtain a warrant before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools. Just as we have in other cases dispensed with the warrant requirement when “the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search,” we hold today that school officials need not obtain a warrant before searching a student who is under their authority.
The school setting also requires some modification of the level of suspicion of illicit activity needed to justify a search. Ordinarily, a search—even one that may permissibly be carried out without a warrant—must be based upon “probable cause” to believe that a violation of the law has occurred. However, “probable cause” is not an irreducible requirement of a valid search. The fundamental command of the Fourth Amendment is that searches and seizures be reasonable, and although “both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, … in certain limited circumstances neither is required.” Thus, we have in a number of cases recognized the legality of searches and seizures based on suspicions that, although “reasonable,” do not rise to the level of probable cause. Where a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard.
We join the majority of courts that have examined this issue in concluding that the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider “whether the … action was justified at its inception[;]” second, one must determine whether the search as actually conducted “was reasonably related in scope to the circumstances which justified the interference in the first place.” Under ordinary circumstances, a search of a student by a teacher or other school official will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
This standard will, we trust, neither unduly burden the efforts of school authorities to maintain order in their schools nor authorize unrestrained intrusions upon the privacy of schoolchildren. By focusing attention on the question of reasonableness, the standard will spare teachers and school administrators the necessity of schooling themselves in the niceties of probable cause and permit them to regulate their conduct according to the dictates of reason and common sense. At the same time, the reasonableness standard should ensure that the interests of students will be invaded no more than is necessary to achieve the legitimate end of preserving order in the schools.
IV
There remains the question of the legality of the search in this case. Our review of the facts surrounding the search leads us to conclude that the search was in no sense unreasonable for Fourth Amendment purposes.
The incident that gave rise to this case actually involved two separate searches, with the first—the search for cigarettes—providing the suspicion that gave rise to the second the search for marihuana. Although it is the fruits of the second search that are at issue here, the validity of the search for marihuana must depend on the reasonableness of the initial search for cigarettes, as there would have been no reason to suspect that T.L.O. possessed marihuana had the first search not taken place. Accordingly, it is to the search for cigarettes that we first turn our attention.
The New Jersey Supreme Court pointed to two grounds for its holding that the search for cigarettes was unreasonable. First, the court observed that possession of cigarettes was not in itself illegal or a violation of school rules. Because the contents of T.L.O.’s purse would therefore have “no direct bearing on the infraction” of which she was accused (smoking in a lavatory where smoking was prohibited), there was no reason to search her purse. Second, even assuming that a search of T.L.O.’s purse might under some circumstances be reasonable in light of the accusation made against T.L.O., the New Jersey court concluded that Mr. Choplick in this particular case had no reasonable grounds to suspect that T.L.O. had cigarettes in her purse. At best, according to the court, Mr. Choplick had “a good hunch.”
Both these conclusions are implausible. T.L.O. had been accused of smoking, and had denied the accusation in the strongest possible terms when she stated that she did not smoke at all. Surely it cannot be said that under these circumstances, T.L.O.’s possession of cigarettes would be irrelevant to the charges against her or to her response to those charges. T.L.O.’s possession of cigarettes, once it was discovered, would both corroborate the report that she had been smoking and undermine the credibility of her defense to the charge of smoking. To be sure, the discovery of the cigarettes would not prove that T.L.O. had been smoking in the lavatory; nor would it, strictly speaking, necessarily be inconsistent with her claim that she did not smoke at all. But it is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The relevance of T.L.O.’s possession of cigarettes to the question whether she had been smoking and to the credibility of her denial that she smoked supplied the necessary “nexus” between the item searched for and the infraction under investigation. Thus, if Mr. Choplick in fact had a reasonable suspicion that T.L.O. had cigarettes in her purse, the search was justified despite the fact that the cigarettes, if found, would constitute “mere evidence” of a violation.
Of course, the New Jersey Supreme Court also held that Mr. Choplick had no reasonable suspicion that the purse would contain cigarettes. This conclusion is puzzling. A teacher had reported that T.L.O. was smoking in the lavatory. Certainly this report gave Mr. Choplick reason to suspect that T.L.O. was carrying cigarettes with her; and if she did have cigarettes, her purse was the obvious place in which to find them. Mr. Choplick’s suspicion that there were cigarettes in the purse was not an “inchoate and unparticularized suspicion or ‘hunch[;]’” rather, it was the sort of “common-sense conclusio[n] about human behavior” upon which “practical people”—including government officials—are entitled to rely. Of course, even if the teacher’s report were true, T.L.O. might not have had a pack of cigarettes with her; she might have borrowed a cigarette from someone else or have been sharing a cigarette with another student. But the requirement of reasonable suspicion is not a requirement of absolute certainty: “sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment ….” Because the hypothesis that T.L.O. was carrying cigarettes in her purse was itself not unreasonable, it is irrelevant that other hypotheses were also consistent with the teacher’s accusation. Accordingly, it cannot be said that Mr. Choplick acted unreasonably when he examined T.L.O.’s purse to see if it contained cigarettes.
Our conclusion that Mr. Choplick’s decision to open T.L.O.’s purse was reasonable brings us to the question of the further search for marihuana once the pack of cigarettes was located. The suspicion upon which the search for marihuana was founded was provided when Mr. Choplick observed a package of rolling papers in the purse as he removed the pack of cigarettes. Although T.L.O. does not dispute the reasonableness of Mr. Choplick’s belief that the rolling papers indicated the presence of marihuana, she does contend that the scope of the search Mr. Choplick conducted exceeded permissible bounds when he seized and read certain letters that implicated T.L.O. in drug dealing. This argument, too, is unpersuasive. The discovery of the rolling papers concededly gave rise to a reasonable suspicion that T.L.O. was carrying marihuana as well as cigarettes in her purse. This suspicion justified further exploration of T.L.O.’s purse, which turned up more evidence of drug-related activities: a pipe, a number of plastic bags of the type commonly used to store marihuana, a small quantity of marihuana, and a fairly substantial amount of money. Under these circumstances, it was not unreasonable to extend the search to a separate zippered compartment of the purse; and when a search of that compartment revealed an index card containing a list of “people who owe me money” as well as two letters, the inference that T.L.O. was involved in marihuana trafficking was substantial enough to justify Mr. Choplick in examining the letters to determine whether they contained any further evidence. In short, we cannot conclude that the search for marihuana was unreasonable in any respect.
Because the search resulting in the discovery of the evidence of marihuana dealing by T.L.O. was reasonable, the New Jersey Supreme Court’s decision to exclude that evidence from T.L.O.’s juvenile delinquency proceedings on Fourth Amendment grounds was erroneous. Accordingly, the judgment of the Supreme Court of New Jersey is [r]eversed.
Justice BRENNAN, with whom Justice MARSHALL joins, concurring in part and dissenting in part.
I fully agree with Part II of the Court’s opinion. Teachers, like all other government officials, must conform their conduct to the Fourth Amendment’s protections of personal privacy and personal security. [T]his principle is of particular importance when applied to schoolteachers, for children learn as much by example as by exposition. It would be incongruous and futile to charge teachers with the task of embuing their students with an understanding of our system of constitutional democracy, while at the same time immunizing those same teachers from the need to respect constitutional protections.
I do not, however, otherwise join the Court’s opinion. Today’s decision sanctions school officials to conduct full-scale searches on a “reasonableness” standard whose only definite content is that it is not the same test as the “probable cause” standard found in the text of the Fourth Amendment. In adopting this unclear, unprecedented, and unnecessary departure from generally applicable Fourth Amendment standards, the Court carves out a broad exception to standards that this Court has developed over years of considering Fourth Amendment problems. Its decision is supported neither by precedent nor even by a fair application of the “balancing test” it proclaims in this very opinion.
I emphatically disagree with the Court’s decision to cast aside the constitutional probable-cause standard when assessing the constitutional validity of a schoolhouse search. The Court’s decision jettisons the probable-cause standard—the only standard that finds support in the text of the Fourth Amendment—on the basis of its Rohrschach-like “balancing test.” Use of such a “balancing test” to determine the standard for evaluating the validity of a full-scale search represents a sizable innovation in Fourth Amendment analysis. This innovation finds support neither in precedent nor policy and portends a dangerous weakening of the purpose of the Fourth Amendment to protect the privacy and security of our citizens. Moreover, even if this Court’s historic understanding of the Fourth Amendment were mistaken and a balancing test of some kind were appropriate, any such test that gave adequate weight to the privacy and security interests protected by the Fourth Amendment would not reach the preordained result the Court’s conclusory analysis reaches today. Therefore, because I believe that the balancing test used by the Court today is flawed both in its inception and in its execution, I respectfully dissent.
In the past several Terms, this Court has produced a succession of Fourth Amendment opinions in which “balancing tests” have been applied to resolve various questions concerning the proper scope of official searches. The Court has begun to apply a “balancing test” to determine whether a particular category of searches intrudes upon expectations of privacy that merit Fourth Amendment protection. It applies a “balancing test” to determine whether a warrant is necessary to conduct a search. In today’s opinion, it employs a “balancing test” to determine what standard should govern the constitutionality of a given category of searches.
All of these “balancing tests” amount to brief nods by the Court in the direction of a neutral utilitarian calculus while the Court in fact engages in an unanalyzed exercise of judicial will. Perhaps this doctrinally destructive nihilism is merely a convenient umbrella under which a majority that cannot agree on a genuine rationale can conceal its differences. And it may be that the real force underlying today’s decision is the belief that the Court purports to reject—the belief that the unique role served by the schools justifies an exception to the Fourth Amendment on their behalf. If so, the methodology of today’s decision may turn out to have as little influence in future cases as will its result, and the Court’s departure from traditional Fourth Amendment doctrine will be confined to the schools.
On my view, the presence of the word “unreasonable” in the text of the Fourth Amendment does not grant a shifting majority of this Court the authority to answer all Fourth Amendment questions by consulting its momentary vision of the social good. Full-scale searches unaccompanied by probable cause violate the Fourth Amendment. I do not pretend that our traditional Fourth Amendment doctrine automatically answers all of the difficult legal questions that occasionally arise. I do contend, however, that this Court has an obligation to provide some coherent framework to resolve such questions on the basis of more than a conclusory recitation of the results of a “balancing test.” The Fourth Amendment itself supplies that framework and, because the Court today fails to heed its message, I must respectfully dissent.
* * *
In 2009, the Court applied the rule of New Jersey v. T.L.O. to a substantially more unpleasant set of facts.
Supreme Court of the United States
Safford Unified School District #1 v. April Redding
Decided June 25, 2009 – 557 U.S. 364
Justice SOUTER delivered the opinion of the Court.
The issue here is whether a 13–year–old student’s Fourth Amendment right was violated when she was subjected to a search of her bra and underpants by school officials acting on reasonable suspicion that she had brought forbidden prescription and over-the-counter drugs to school. Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution.
I
The events immediately prior to the search in question began in 13–year–old Savana Redding’s math class at Safford Middle School one October day in 2003. The assistant principal of the school, Kerry Wilson, came into the room and asked Savana to go to his office. There, he showed her a day planner, unzipped and open flat on his desk, in which there were several knives, lighters, a permanent marker, and a cigarette. Wilson asked Savana whether the planner was hers; she said it was, but that a few days before she had lent it to her friend, Marissa Glines. Savana stated that none of the items in the planner belonged to her.
Wilson then showed Savana four white prescription-strength ibuprofen 400–mg pills, and one over-the-counter blue naproxen 200–mg pill, all used for pain and inflammation but banned under school rules without advance permission. He asked Savana if she knew anything about the pills. Savana answered that she did not. Wilson then told Savana that he had received a report that she was giving these pills to fellow students; Savana denied it and agreed to let Wilson search her belongings. Helen Romero, an administrative assistant, came into the office, and together with Wilson they searched Savana’s backpack, finding nothing.
At that point, Wilson instructed Romero to take Savana to the school nurse’s office to search her clothes for pills. Romero and the nurse, Peggy Schwallier, asked Savana to remove her jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets), which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found.
Savana’s mother filed suit against Safford Unified School District # 1, Wilson, Romero, and Schwallier for conducting a strip search in violation of Savana’s Fourth Amendment rights. The individuals (hereinafter petitioners) moved for summary judgment, raising a defense of qualified immunity. The District Court for the District of Arizona granted the motion on the ground that there was no Fourth Amendment violation, and a panel of the Ninth Circuit affirmed. A closely divided Circuit sitting en banc, however, reversed. We granted certiorari and now affirm in part, reverse in part, and remand.
II
The Fourth Amendment “right of the people to be secure in their persons … against unreasonable searches and seizures” generally requires a law enforcement officer to have probable cause for conducting a search.
In T.L.O., we recognized that the school setting “requires some modification of the level of suspicion of illicit activity needed to justify a search” and held that for searches by school officials “a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause.” We have thus applied a standard of reasonable suspicion to determine the legality of a school administrator’s search of a student and have held that a school search “will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”
Perhaps the best that can be said generally about the required knowledge component of probable cause for a law enforcement officer’s evidence search is that it raise a “fair probability” or a “substantial chance” of discovering evidence of criminal activity. The lesser standard for school searches could as readily be described as a moderate chance of finding evidence of wrongdoing.
A
In this case, the school’s policies strictly prohibit the nonmedical use, possession, or sale of any drug on school grounds, including “‘[a]ny prescription or over-the-counter drug, except those for which permission to use in school has been granted pursuant to Board policy.’” A week before Savana was searched, another student, Jordan Romero (no relation of the school’s administrative assistant), told the principal and Assistant Principal Wilson that “certain students were bringing drugs and weapons on campus,” and that he had been sick after taking some pills that “he got from a classmate.” On the morning of October 8, the same boy handed Wilson a white pill that he said Marissa Glines had given him. He told Wilson that students were planning to take the pills at lunch.
Wilson learned from Peggy Schwallier, the school nurse, that the pill was Ibuprofen 400 mg, available only by prescription. Wilson then called Marissa out of class. Outside the classroom, Marissa’s teacher handed Wilson the day planner, found within Marissa’s reach, containing various contraband items. Wilson escorted Marissa back to his office.
In the presence of Helen Romero, Wilson requested Marissa to turn out her pockets and open her wallet. Marissa produced a blue pill, several white ones, and a razor blade. Wilson asked where the blue pill came from, and Marissa answered, “‘I guess it slipped in when she gave me the IBU 400s.’” When Wilson asked whom she meant, Marissa replied, “‘Savana Redding.’” Wilson then enquired about the day planner and its contents; Marissa denied knowing anything about them. Wilson did not ask Marissa any followup questions to determine whether there was any likelihood that Savana presently had pills: neither asking when Marissa received the pills from Savana nor where Savana might be hiding them.
Schwallier did not immediately recognize the blue pill, but information provided through a poison control hotline indicated that the pill was a 200-mg dose of an anti-inflammatory drug, generically called naproxen, available over the counter. At Wilson’s direction, Marissa was then subjected to a search of her bra and underpants by Romero and Schwallier, as Savana was later on. The search revealed no additional pills.
It was at this juncture that Wilson called Savana into his office and showed her the day planner. Their conversation established that Savana and Marissa were on friendly terms: while she denied knowledge of the contraband, Savana admitted that the day planner was hers and that she had lent it to Marissa. Wilson had other reports of their friendship from staff members, who had identified Savana and Marissa as part of an unusually rowdy group at the school’s opening dance in August, during which alcohol and cigarettes were found in the girls’ bathroom. Wilson had reason to connect the girls with this contraband, for Wilson knew that Jordan Romero had told the principal that before the dance, he had been at a party at Savana’s house where alcohol was served. Marissa’s statement that the pills came from Savana was thus sufficiently plausible to warrant suspicion that Savana was involved in pill distribution.
This suspicion of Wilson’s was enough to justify a search of Savana’s backpack and outer clothing. If a student is reasonably suspected of giving out contraband pills, she is reasonably suspected of carrying them on her person and in the carryall that has become an item of student uniform in most places today. If Wilson’s reasonable suspicion of pill distribution were not understood to support searches of outer clothes and backpack, it would not justify any search worth making. And the look into Savana’s bag, in her presence and in the relative privacy of Wilson’s office, was not excessively intrusive, any more than Romero’s subsequent search of her outer clothing.
B
Here it is that the parties part company, with Savana’s claim that extending the search at Wilson’s behest to the point of making her pull out her underwear was constitutionally unreasonable. The exact label for this final step in the intrusion is not important, though strip search is a fair way to speak of it. Romero and Schwallier directed Savana to remove her clothes down to her underwear, and then “pull out” her bra and the elastic band on her underpants. Although Romero and Schwallier stated that they did not see anything when Savana followed their instructions, we would not define strip search and its Fourth Amendment consequences in a way that would guarantee litigation about who was looking and how much was seen. The very fact of Savana’s pulling her underwear away from her body in the presence of the two officials who were able to see her necessarily exposed her breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings.
Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure. The common reaction of these adolescents simply registers the obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances. Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be.
The indignity of the search does not, of course, outlaw it, but it does implicate the rule of reasonableness as stated in T.L.O., that “the search as actually conducted [be] reasonably related in scope to the circumstances which justified the interference in the first place.” The scope will be permissible, that is, when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”
Here, the content of the suspicion failed to match the degree of intrusion. Wilson knew beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve. He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills.
Nor could Wilson have suspected that Savana was hiding common painkillers in her underwear. Petitioners suggest, as a truth universally acknowledged, that “students … hid[e] contraband in or under their clothing” and cite a smattering of cases of students with contraband in their underwear. But when the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short; a reasonable search that extensive calls for suspicion that it will pay off. But nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear; neither Jordan nor Marissa suggested to Wilson that Savana was doing that, and the preceding search of Marissa that Wilson ordered yielded nothing. Wilson never even determined when Marissa had received the pills from Savana; if it had been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear.
In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.
In so holding, we mean to cast no ill reflection on the assistant principal, for the record raises no doubt that his motive throughout was to eliminate drugs from his school and protect students from what Jordan Romero had gone through. Parents are known to overreact to protect their children from danger, and a school official with responsibility for safety may tend to do the same. The difference is that the Fourth Amendment places limits on the official, even with the high degree of deference that courts must pay to the educator’s professional judgment.
We do mean, though, to make it clear that the T.L.O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.
[The Court found qualified immunity warranted for Wilson, Romero, and Schwallier because “the cases viewing school strip searches differently from the way we see them are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt that we were sufficiently clear in the prior statement of law.” The case was remanded for resolution of the question of liability for the school district.]
Justice THOMAS, concurring in the judgment in part and dissenting in part.
By declaring the search unreasonable in this case, the majority has “‘surrender[ed] control of the American public school system to public school students’” by invalidating school policies that treat all drugs equally and by second-guessing swift disciplinary decisions made by school officials. The Court’s interference in these matters of great concern to teachers, parents, and students illustrates why the most constitutionally sound approach to the question of applying the Fourth Amendment in local public schools would in fact be the complete restoration of the common-law doctrine of in loco parentis.
“[I]n the early years of public schooling,” courts applied the doctrine of in loco parentis to transfer to teachers the authority of a parent to “‘command obedience, to control stubbornness, to quicken diligence, and to reform bad habits.’” So empowered, schoolteachers and administrators had almost complete discretion to establish and enforce the rules they believed were necessary to maintain control over their classrooms. The perils of judicial policymaking inherent in applying Fourth Amendment protections to public schools counsel in favor of a return to the understanding that existed in this Nation’s first public schools, which gave teachers discretion to craft the rules needed to carry out the disciplinary responsibilities delegated to them by parents.
If the common-law view that parents delegate to teachers their authority to discipline and maintain order were to be applied in this case, the search of Redding would stand. There can be no doubt that a parent would have had the authority to conduct the search at issue in this case. Parents have “immunity from the strictures of the Fourth Amendment” when it comes to searches of a child or that child’s belongings.
Restoring the common-law doctrine of in loco parentis would not, however, leave public schools entirely free to impose any rule they choose. “If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move.” Indeed, parents and local government officials have proved themselves quite capable of challenging overly harsh school rules or the enforcement of sensible rules in insensible ways.
In the end, the task of implementing and amending public school policies is beyond this Court’s function. Parents, teachers, school administrators, local politicians, and state officials are all better suited than judges to determine the appropriate limits on searches conducted by school officials. Preservation of order, discipline, and safety in public schools is simply not the domain of the Constitution. And, common sense is not a judicial monopoly or a Constitutional imperative.
Only then will teachers again be able to “‘govern the[ir] pupils, quicken the slothful, spur the indolent, restrain the impetuous, and control the stubborn’” by making “‘rules, giv[ing] commands, and punish[ing] disobedience’” without interference from judges. By deciding that it is better equipped to decide what behavior should be permitted in schools, the Court has undercut student safety and undermined the authority of school administrators and local officials. Even more troubling, it has done so in a case in which the underlying response by school administrators was reasonable and justified. I cannot join this regrettable decision. I, therefore, respectfully dissent from the Court’s determination that this search violated the Fourth Amendment.
Notes, Comments, and Questions
April Redding sued the Safford Unified school district on behalf of her daughter, Savana. During the oral argument, some of the Justices asked questions that betrayed their lack of knowledge about modern middle school life. Justice Scalia, for example, inquired about some of the items classified as contraband at Savana’s school. He said learning that a “black marker pencil” was contraband “astounded” him. Told by counsel that students use such markers “for sniffing,” Justice Scalia replied, “Oh, is that what they do? … They sniff them? … Really?”
Justice Breyer, after trying to pin down the facts concerning how Savana was searched—and after suggesting that underwear might be a sensible place to hide pills—reminisced on his own school days.
“In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay?”
He continued, “And in my experience, too, people did sometimes stick things in my underwear.”
The audience burst into laughter, and he clarified: “Or not my underwear. Whatever. … I was the one who did it? I don’t know.”
Dahlia Lithwick, who covered the case for Slate, predicted as follows after the oral argument:
“When constitutional historians sit down someday to compile the definitive Supreme Court Concordance of Not Getting It, the entry directly next to Lilly Ledbetter (‘Court fails utterly to understand realities of gender pay discrimination’) will be Savana Redding (‘Court compares strip searches of 13-year-old girls to American Pie-style locker-room hijinks’). After today’s argument, it’s plain the court will overturn a 9th Circuit Court of Appeals opinion finding a school’s decision to strip-search a 13-year-old girl unconstitutional. That the school in question was looking for a prescription pill with the mind-altering force of a pair of Advil—and couldn’t be bothered to call the child’s mother first—hardly matters.”
Having read the Court’s opinion, we know that Lithwick’s prediction was not correct. Justice Breyer, he of the hijinks memories, joined an eight-Justice majority finding that the school’s behavior violated the Fourth Amendment. Although there was broad consensus for finding a violation, a smaller majority of Justices denied Savana money damages, holding that the school officials were protected by “qualified immunity,” a doctrine discussed in Chapter 35.
Based on the standards set forth in T.L.O. and Redding, consider these potential actions by a school district:
May a school search the mobile phone of a student who was caught texting in class? Does it matter if the teachers search only to see who else was texting with the student or instead search the photos and other data on the phone? See Amy Vorenberg, Indecent Exposure: Do Warrantless Searches of a Student’s Cell Phone Violate the Fourth Amendment?, 17 Berkeley J. Crim. L. 62 (2012).
What about random locker searches aimed at finding drugs? What about requiring students to use clear backpacks or to walk through metal detectors when entering the school building?
We now turn to searches of public employees. Supervisors of public employees have a duty to monitor the work of subordinates for the public interest. Beyond reducing waste, fraud, and abuse, supervisors have the day-to-day responsibility of managing staff so that offices accomplish their goals. It remains unclear what privacy rights public employees maintain at work.
In the context of a public employee whose electronic communications were searched by supervisors, the Court in 2010 avoided resolving important questions about public employee privacy. The Court found the searches at issue “reasonable,” in part, because the employee’s behavior was egregious and the response of the employer unsurprising. Students should note what issues are not decided by the Court, in addition to noting the holdings.
Supreme Court of the United States
City of Ontario, California v. Jeff Quon
Decided June 17, 2010 – 560 U.S. 746
Justice KENNEDY delivered the opinion of the Court.
This case involves the assertion by a government employer of the right, in circumstances to be described, to read text messages sent and received on a pager the employer owned and issued to an employee. The employee contends that the privacy of the messages is protected by the ban on “unreasonable searches and seizures” found in the Fourth Amendment to the United States Constitution, made applicable to the States by the Due Process Clause of the Fourteenth Amendment. Though the case touches issues of farreaching significance, the Court concludes it can be resolved by settled principles determining when a search is reasonable.
A
The City of Ontario (City) is a political subdivision of the State of California. The case arose out of incidents in 2001 and 2002 when respondent Jeff Quon was employed by the Ontario Police Department (OPD). He was a police sergeant and member of OPD’s Special Weapons and Tactics (SWAT) Team. The City, OPD, and OPD’s Chief, Lloyd Scharf, are petitioners here. As will be discussed, two respondents share the last name Quon. In this opinion “Quon” refers to Jeff Quon, for the relevant events mostly revolve around him.
In October 2001, the City acquired 20 alphanumeric pagers capable of sending and receiving text messages. Arch Wireless Operating Company provided wireless service for the pagers. Under the City’s service contract with Arch Wireless, each pager was allotted a limited number of characters sent or received each month. Usage in excess of that amount would result in an additional fee. The City issued pagers to Quon and other SWAT Team members in order to help the SWAT Team mobilize and respond to emergency situations.
Before acquiring the pagers, the City announced a “Computer Usage, Internet and E–Mail Policy” (Computer Policy) that applied to all employees. Among other provisions, it specified that the City “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.” In March 2000, Quon signed a statement acknowledging that he had read and understood the Computer Policy.
The Computer Policy did not apply, on its face, to text messaging. Text messages share similarities with e-mails, but the two differ in an important way. In this case, for instance, an e-mail sent on a City computer was transmitted through the City’s own data servers, but a text message sent on one of the City’s pagers was transmitted using wireless radio frequencies from an individual pager to a receiving station owned by Arch Wireless. It was routed through Arch Wireless’ computer network, where it remained until the recipient’s pager or cellular telephone was ready to receive the message, at which point Arch Wireless transmitted the message from the transmitting station nearest to the recipient. After delivery, Arch Wireless retained a copy on its computer servers. The message did not pass through computers owned by the City.
Although the Computer Policy did not cover text messages by its explicit terms, the City made clear to employees, including Quon, that the City would treat text messages the same way as it treated e-mails. At an April 18, 2002, staff meeting at which Quon was present, Lieutenant Steven Duke, the OPD officer responsible for the City’s contract with Arch Wireless, told officers that messages sent on the pagers “are considered e-mail messages. This means that [text] messages would fall under the City’s policy as public information and [would be] eligible for auditing.” Duke’s comments were put in writing in a memorandum sent on April 29, 2002, by Chief Scharf to Quon and other City personnel.
Within the first or second billing cycle after the pagers were distributed, Quon exceeded his monthly text message character allotment. Duke told Quon about the overage, and reminded him that messages sent on the pagers were “considered e-mail and could be audited.” Duke said, however, that “it was not his intent to audit [an] employee’s text messages to see if the overage [was] due to work related transmissions.” Duke suggested that Quon could reimburse the City for the overage fee rather than have Duke audit the messages. Quon wrote a check to the City for the overage. Duke offered the same arrangement to other employees who incurred overage fees.
Over the next few months, Quon exceeded his character limit three or four times. Each time he reimbursed the City. Quon and another officer again incurred overage fees for their pager usage in August 2002. At a meeting in October, Duke told Scharf that he had become “‘tired of being a bill collector.’” Scharf decided to determine whether the existing character limit was too low—that is, whether officers such as Quon were having to pay fees for sending work-related messages—or if the overages were for personal messages. Scharf told Duke to request transcripts of text messages sent in August and September by Quon and the other employee who had exceeded the character allowance.
At Duke’s request, an administrative assistant employed by OPD contacted Arch Wireless. After verifying that the City was the subscriber on the accounts, Arch Wireless provided the desired transcripts. Duke reviewed the transcripts and discovered that many of the messages sent and received on Quon’s pager were not work related, and some were sexually explicit. Duke reported his findings to Scharf, who, along with Quon’s immediate supervisor, reviewed the transcripts himself. After his review, Scharf referred the matter to OPD’s internal affairs division for an investigation into whether Quon was violating OPD rules by pursuing personal matters while on duty.
The officer in charge of the internal affairs review was Sergeant Patrick McMahon. Before conducting a review, McMahon used Quon’s work schedule to redact the transcripts in order to eliminate any messages Quon sent while off duty. He then reviewed the content of the messages Quon sent during work hours. McMahon’s report noted that Quon sent or received 456 messages during work hours in the month of August 2002, of which no more than 57 were work related; he sent as many as 80 messages during a single day at work; and on an average workday, Quon sent or received 28 messages, of which only 3 were related to police business. The report concluded that Quon had violated OPD rules. Quon was allegedly disciplined.
B
Quon filed suit against petitioners in the United States District Court for the Central District of California. Among the allegations in the complaint was that petitioners violated respondent[’s] Fourth Amendment rights by obtaining and reviewing the transcript of Jeff Quon’s pager messages.
The parties filed cross-motions for summary judgment. The District Court denied petitioners’ motion for summary judgment on the Fourth Amendment claims. The jury concluded that Scharf ordered the audit to determine the efficacy of the character limits. The District Court accordingly held that petitioners did not violate the Fourth Amendment. It entered judgment in their favor.
The United States Court of Appeals for the Ninth Circuit reversed in part. The panel agreed with the District Court that Jeff Quon had a reasonable expectation of privacy in his text messages but disagreed with the District Court about whether the search was reasonable. The Ninth Circuit denied a petition for rehearing en banc.
This Court granted the petition for certiorari filed by the City, OPD, and Chief Scharf challenging the Court of Appeals’ holding that they violated the Fourth Amendment.
II
It is well settled that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations. “The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government,” without regard to whether the government actor is investigating crime or performing another function. The Fourth Amendment applies as well when the Government acts in its capacity as an employer.
The Court discussed this principle in O’Connor [v. Ortega, 480 U.S. 709 (1987)]. All Members of the Court agreed with the general principle that “[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer.” A majority of the Court further agreed that “‘special needs, beyond the normal need for law enforcement,’” make the warrant and probable-cause requirement impracticable for government employers.
The O’Connor Court did disagree on the proper analytical framework for Fourth Amendment claims against government employers. A four-Justice plurality concluded that the correct analysis has two steps. First, because “some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable,” a court must consider “[t]he operational realities of the workplace” in order to determine whether an employee’s Fourth Amendment rights are implicated. On this view, “the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.” Next, where an employee has a legitimate privacy expectation, an employer’s intrusion on that expectation “for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.”
Justice SCALIA, concurring in the judgment, outlined a different approach. His opinion would have dispensed with an inquiry into “operational realities” and would conclude “that the offices of government employees … are covered by Fourth Amendment protections as a general matter.” But he would also have held “that government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private-employer context—do not violate the Fourth Amendment.”
Later, in the Von Raab decision, [Treasury Employees v. Von Raab, 489 U.S. 656 (1989)], the Court explained that “operational realities” could diminish an employee’s privacy expectations, and that this diminution could be taken into consideration when assessing the reasonableness of a workplace search. In the two decades since O’Connor, however, the threshold test for determining the scope of an employee’s Fourth Amendment rights has not been clarified further. Here, though they disagree on whether Quon had a reasonable expectation of privacy, both petitioners and respondents start from the premise that the O’Connor plurality controls. It is not necessary to resolve whether that premise is correct. The case can be decided by determining that the search was reasonable even assuming Quon had a reasonable expectation of privacy. The two O’Connor approaches—the plurality’s and Justice SCALIA’s—therefore lead to the same result here.
A
Before turning to the reasonableness of the search, it is instructive to note the parties’ disagreement over whether Quon had a reasonable expectation of privacy. The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. In Katz, the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. It is not so clear that courts at present are on so sure a ground. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.
Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency. Another amicus points out that the law is beginning to respond to these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their electronic communications. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.
[T]he Court [will] have difficulty predicting how employees’ privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable. Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.
A broad holding concerning employees’ privacy expectations vis–à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds. For present purposes we assume several propositions arguendo: First, Quon had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City; second, petitioners’ review of the transcript constituted a search within the meaning of the Fourth Amendment; and third, the principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.
B
Even if Quon had a reasonable expectation of privacy in his text messages, petitioners did not necessarily violate the Fourth Amendment by obtaining and reviewing the transcripts. Although as a general matter, warrantless searches “are per se unreasonable under the Fourth Amendment,” there are “a few specifically established and well-delineated exceptions” to that general rule. The Court has held that the “‘special needs’” of the workplace justify one such exception.
Under the approach of the O’Connor plurality, when conducted for a “noninvestigatory, work-related purpos[e]” or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “‘justified at its inception’” and if “‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’” the circumstances giving rise to the search. The search here satisfied the standard of the O’Connor plurality and was reasonable under that approach.
The search was justified at its inception because there were “reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related purpose.” As a jury found, Chief Scharf ordered the search in order to determine whether the character limit on the City’s contract with Arch Wireless was sufficient to meet the City’s needs. This was, as the Ninth Circuit noted, a “legitimate work-related rationale.” The City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications.
As for the scope of the search, reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use. The review was also not “‘excessively intrusive.’” Although Quon had gone over his monthly allotment a number of times, OPD requested transcripts for only the months of August and September 2002. While it may have been reasonable as well for OPD to review transcripts of all the months in which Quon exceeded his allowance, it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the character limits were efficacious. And it is worth noting that during his internal affairs investigation, McMahon redacted all messages Quon sent while off duty, a measure which reduced the intrusiveness of any further review of the transcripts.
Furthermore, and again on the assumption that Quon had a reasonable expectation of privacy in the contents of his messages, the extent of an expectation is relevant to assessing whether the search was too intrusive. Even if he could assume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. Quon was told that his messages were subject to auditing. As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications. Under the circumstances, a reasonable employee would be aware that sound management principles might require the audit of messages to determine whether the pager was being appropriately used. Given that the City issued the pagers to Quon and other SWAT Team members in order to help them more quickly respond to crises—and given that Quon had received no assurances of privacy—Quon could have anticipated that it might be necessary for the City to audit pager messages to assess the SWAT Team’s performance in particular emergency situations.
From OPD’s perspective, the fact that Quon likely had only a limited privacy expectation, with boundaries that we need not here explore, lessened the risk that the review would intrude on highly private details of Quon’s life. OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been. That the search did reveal intimate details of Quon’s life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters. The search was permissible in its scope.
The Court of Appeals erred in finding the search unreasonable. It pointed to a “host of simple ways to verify the efficacy of the 25,000 character limit … without intruding on [respondents’] Fourth Amendment rights.” The panel suggested that Scharf “could have warned Quon that for the month of September he was forbidden from using his pager for personal communications, and that the contents of all his messages would be reviewed to ensure the pager was used only for work-related purposes during that time frame. Alternatively, if [OPD] wanted to review past usage, it could have asked Quon to count the characters himself, or asked him to redact personal messages and grant permission to [OPD] to review the redacted transcript.”
This approach was inconsistent with controlling precedents. This Court has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.” That rationale “could raise insuperable barriers to the exercise of virtually all search-and-seizure powers,” because “judges engaged in post hoc evaluations of government conduct can almost always imagine some alternative means by which the objectives of the government might have been accomplished.” The analytic errors of the Court of Appeals in this case illustrate the necessity of this principle. Even assuming there were ways that OPD could have performed the search that would have been less intrusive, it does not follow that the search as conducted was unreasonable.
Because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable under the approach of the O’Connor plurality. For these same reasons—that the employer had a legitimate reason for the search, and that the search was not excessively intrusive in light of that justification—the Court also concludes that the search would be “regarded as reasonable and normal in the private-employer context” and would satisfy the approach of Justice SCALIA’s concurrence. The search was reasonable, and the Court of Appeals erred by holding to the contrary. Petitioners did not violate Quon’s Fourth Amendment rights.
The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
* * *
A recurring Fourth Amendment question for public employees and public school students is the permissibility of drug testing by employers and school officials. We consider that issue in our next chapter. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.15%3A_Chapter_16_-_The_Warrant_Requirement-_Exceptions_%28Part_8%29.txt |
In this chapter, we continue our discussion of searches of public school students and public employees. First, we review when the Court has allowed for public employers and public schools to require that employees and students submit to drug tests. Then, we consider the question of when public hospitals may conduct drug tests of patients without consent.
Drug Testing of Public Employees
The next case concerns a government regulation providing for the drug testing of certain railroad employees after certain accidents.
Supreme Court of the United States
Samuel K. Skinner v. Railway Labor Executives’ Association
Decided March 21, 1989 – 489 U.S. 602
Justice KENNEDY delivered the opinion of the Court.
The Federal Railroad Safety Act of 1970 authorizes the Secretary of Transportation to “prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety.” Finding that alcohol and drug abuse by railroad employees poses a serious threat to safety, the Federal Railroad Administration (FRA) has promulgated regulations that mandate blood and urine tests of employees who are involved in certain train accidents. The FRA also has adopted regulations that do not require, but do authorize, railroads to administer breath and urine tests to employees who violate certain safety rules. The question presented by this case is whether these regulations violate the Fourth Amendment.
I
The regulations prohibit covered employees from using or possessing alcohol or any controlled substance. The regulations further prohibit those employees from reporting for covered service while under the influence of, or impaired by, alcohol, while having a blood alcohol concentration of .04 or more, or while under the influence of, or impaired by, any controlled substance. To the extent pertinent here, two subparts of the regulations relate to testing. Subpart C, which is entitled “Post-Accident Toxicological Testing,” is mandatory. It provides that railroads “shall take all practicable steps to assure that all covered employees of the railroad directly involved … provide blood and urine samples for toxicological testing by FRA” upon the occurrence of certain specified events. Toxicological testing is required following a “major train accident,” which is defined as any train accident that involves (i) a fatality, (ii) the release of hazardous material accompanied by an evacuation or a reportable injury, or (iii) damage to railroad property of \$500,000 or more. The railroad has the further duty of collecting blood and urine samples for testing after an “impact accident,” which is defined as a collision that results in a reportable injury, or in damage to railroad property of \$50,000 or more. Finally, the railroad is also obligated to test after “[a]ny train incident that involves a fatality to any on-duty railroad employee.”
After occurrence of an event which activates its duty to test, the railroad must transport all crew members and other covered employees directly involved in the accident or incident to an independent medical facility, where both blood and urine samples must be obtained from each employee. After the samples have been collected, the railroad is required to ship them by prepaid air freight to the FRA laboratory for analysis. The FRA proposes to place primary reliance on analysis of blood samples, as blood is “the only available body fluid … that can provide a clear indication not only of the presence of alcohol and drugs but also their current impairment effects.” Urine samples are also necessary, however, because drug traces remain in the urine longer than in blood, and in some cases it will not be possible to transport employees to a medical facility before the time it takes for certain drugs to be eliminated from the bloodstream. In those instances, a “positive urine test, taken with specific information on the pattern of elimination for the particular drug and other information on the behavior of the employee and the circumstances of the accident, may be crucial to the determination of” the cause of an accident.
The regulations require that the FRA notify employees of the results of the tests and afford them an opportunity to respond in writing before preparation of any final investigative report. Employees who refuse to provide required blood or urine samples may not perform covered service for nine months, but they are entitled to a hearing concerning their refusal to take the test.
Subpart D of the regulations, which is entitled “Authorization to Test for Cause,” is permissive. It authorizes railroads to require covered employees to submit to breath or urine tests in certain circumstances not addressed by Subpart C. Breath or urine tests, or both, may be ordered (1) after a reportable accident or incident, where a supervisor has a “reasonable suspicion” that an employee’s acts or omissions contributed to the occurrence or severity of the accident or incident; or (2) in the event of certain specific rule violations, including noncompliance with a signal and excessive speeding. A railroad also may require breath tests where a supervisor has a “reasonable suspicion” that an employee is under the influence of alcohol, based upon specific, personal observations concerning the appearance, behavior, speech, or body odors of the employee. Where impairment is suspected, a railroad, in addition, may require urine tests, but only if two supervisors make the appropriate determination and where the supervisors suspect impairment due to a substance other than alcohol, at least one of those supervisors must have received specialized training in detecting the signs of drug intoxication.
Subpart D further provides that whenever the results of either breath or urine tests are intended for use in a disciplinary proceeding, the employee must be given the opportunity to provide a blood sample for analysis at an independent medical facility. If an employee declines to give a blood sample, the railroad may presume impairment, absent persuasive evidence to the contrary, from a positive showing of controlled substance residues in the urine. The railroad must, however, provide detailed notice of this presumption to its employees, and advise them of their right to provide a contemporaneous blood sample. As in the case of samples procured under Subpart C, the regulations set forth procedures for the collection of samples, and require that samples “be analyzed by a method that is reliable within known tolerances.”
Respondents brought the instant suit in the United States District Court for the Northern District of California, seeking to enjoin the FRA’s regulations on various statutory and constitutional grounds. In a ruling from the bench, the District Court granted summary judgment in petitioners’ favor. A divided panel of the Court of Appeals for the Ninth Circuit reversed. We granted the federal parties’ petition for a writ of certiorari to consider whether the regulations invalidated by the Court of Appeals violate the Fourth Amendment. We now reverse.
II
[The Court first determined that the drug testing regulation could be challenged under the Fourth Amendment even though the tests at issue were conducted by private railroads. The Court also found that the tests amounted to “searches.”]
A
[T]he Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. What is reasonable, of course, “depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.” Thus, the permissibility of a particular practice “is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”
We have recognized exceptions to [the warrant requirement] “when ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’” When faced with such special needs, we have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements in the particular context.
The Government’s interest in regulating the conduct of railroad employees to ensure safety, like its supervision of probationers or regulated industries, or its operation of a government office, school, or prison, “likewise presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.” It is undisputed that [] covered employees are engaged in safety-sensitive tasks. The FRA so found, and respondents conceded the point at oral argument.
The FRA has prescribed toxicological tests, not to assist in the prosecution of employees, but rather “to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs.” This governmental interest in ensuring the safety of the traveling public and of the employees themselves plainly justifies prohibiting covered employees from using alcohol or drugs on duty, or while subject to being called for duty. This interest also “require[s] and justif[ies] the exercise of supervision to assure that the restrictions are in fact observed.” The question that remains, then, is whether the Government’s need to monitor compliance with these restrictions justifies the privacy intrusions at issue absent a warrant or individualized suspicion.
B
Both the circumstances justifying toxicological testing and the permissible limits of such intrusions are defined narrowly and specifically in the regulations that authorize them, and doubtless are well known to covered employees. Indeed, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate.
We have recognized, moreover, that the government’s interest in dispensing with the warrant requirement is at its strongest when, as here, “the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.” As the FRA recognized, alcohol and other drugs are eliminated from the bloodstream at a constant rate, and blood and breath samples taken to measure whether these substances were in the bloodstream when a triggering event occurred must be obtained as soon as possible.
The Government’s need to rely on private railroads to set the testing process in motion also indicates that insistence on a warrant requirement would impede the achievement of the Government’s objective. Railroad supervisors are not in the business of investigating violations of the criminal laws or enforcing administrative codes, and otherwise have little occasion to become familiar with the intricacies of this Court’s Fourth Amendment jurisprudence. “Imposing unwieldy warrant procedures … upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable.”
In sum, imposing a warrant requirement in the present context would add little to the assurances of certainty and regularity already afforded by the regulations, while significantly hindering, and in many cases frustrating, the objectives of the Government’s testing program. We do not believe that a warrant is essential to render the intrusions here at issue reasonable under the Fourth Amendment.
Our cases indicate that even a search that may be performed without a warrant must be based, as a general matter, on probable cause to believe that the person to be searched has violated the law. When the balance of interests precludes insistence on a showing of probable cause, we have usually required “some quantum of individualized suspicion” before concluding that a search is reasonable. We made it clear, however, that a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable. In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. We believe this is true of the intrusions in question here.
By and large, intrusions on privacy under the FRA regulations are limited. The breath tests authorized by Subpart D of the regulations are even less intrusive than the blood tests prescribed by Subpart C. Unlike blood tests, breath tests do not require piercing the skin and may be conducted safely outside a hospital environment and with a minimum of inconvenience or embarrassment. Like the blood-testing procedures mandated by Subpart C, which can be used only to ascertain the presence of alcohol or controlled substances in the bloodstream, breath tests reveal no other facts in which the employee has a substantial privacy interest. In all the circumstances, we cannot conclude that the administration of a breath test implicates significant privacy concerns.
A more difficult question is presented by urine tests. Like breath tests, urine tests are not invasive of the body and, under the regulations, may not be used as an occasion for inquiring into private facts unrelated to alcohol or drug use. We recognize, however, that the procedures for collecting the necessary samples, which require employees to perform an excretory function traditionally shielded by great privacy, raise concerns not implicated by blood or breath tests. While we would not characterize these additional privacy concerns as minimal in most contexts, we note that the regulations endeavor to reduce the intrusiveness of the collection process. The regulations do not require that samples be furnished under the direct observation of a monitor, despite the desirability of such a procedure to ensure the integrity of the sample. The sample is also collected in a medical environment, by personnel unrelated to the railroad employer, and is thus not unlike similar procedures encountered often in the context of a regular physical examination.
More importantly, the expectations of privacy of covered employees are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees. We do not suggest, of course, that the interest in bodily security enjoyed by those employed in a regulated industry must always be considered minimal. Here, however, the covered employees have long been a principal focus of regulatory concern. As the dissenting judge below noted: “The reason is obvious. An idle locomotive, sitting in the roundhouse, is harmless. It becomes lethal when operated negligently by persons who are under the influence of alcohol or drugs.” We conclude, therefore, that the testing procedures contemplated by Subparts C and D pose only limited threats to the justifiable expectations of privacy of covered employees.
By contrast, the Government interest in testing without a showing of individualized suspicion is compelling. Employees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences. Much like persons who have routine access to dangerous nuclear power facilities, employees who are subject to testing under the FRA regulations can cause great human loss before any signs of impairment become noticeable to supervisors or others. An impaired employee, the FRA found, will seldom display any outward “signs detectable by the lay person or, in many cases, even the physician.” Indeed, while respondents posit that impaired employees might be detected without alcohol or drug testing, the premise of respondents’ lawsuit is that even the occurrence of a major calamity will not give rise to a suspicion of impairment with respect to any particular employee.
While no procedure can identify all impaired employees with ease and perfect accuracy, the FRA regulations supply an effective means of deterring employees engaged in safety-sensitive tasks from using controlled substances or alcohol in the first place. By ensuring that employees in safety-sensitive positions know they will be tested upon the occurrence of a triggering event, the timing of which no employee can predict with certainty, the regulations significantly increase the deterrent effect of the administrative penalties associated with the prohibited conduct, concomitantly increasing the likelihood that employees will forgo using drugs or alcohol while subject to being called for duty.
The testing procedures contemplated by Subpart C also help railroads obtain invaluable information about the causes of major accidents and to take appropriate measures to safeguard the general public. Positive test results would point toward drug or alcohol impairment on the part of members of the crew as a possible cause of an accident, and may help to establish whether a particular accident, otherwise not drug related, was made worse by the inability of impaired employees to respond appropriately. Negative test results would likewise furnish invaluable clues, for eliminating drug impairment as a potential cause or contributing factor would help establish the significance of equipment failure, inadequate training, or other potential causes, and suggest a more thorough examination of these alternatives. Tests performed following the rule violations specified in Subpart D likewise can provide valuable information respecting the causes of those transgressions, which the FRA found to involve “the potential for a serious train accident or grave personal injury, or both.”
A requirement of particularized suspicion of drug or alcohol use would seriously impede an employer’s ability to obtain this information, despite its obvious importance. Experience confirms the FRA’s judgment that the scene of a serious rail accident is chaotic. Investigators who arrive at the scene shortly after a major accident has occurred may find it difficult to determine which members of a train crew contributed to its occurrence. Obtaining evidence that might give rise to the suspicion that a particular employee is impaired, a difficult endeavor in the best of circumstances, is most impracticable in the aftermath of a serious accident. While events following the rule violations that activate the testing authority of Subpart D may be less chaotic, objective indicia of impairment are absent in these instances as well. Indeed, any attempt to gather evidence relating to the possible impairment of particular employees likely would result in the loss or deterioration of the evidence furnished by the tests. It would be unrealistic, and inimical to the Government’s goal of ensuring safety in rail transportation, to require a showing of individualized suspicion in these circumstances.
We conclude that the compelling Government interests served by the FRA’s regulations would be significantly hindered if railroads were required to point to specific facts giving rise to a reasonable suspicion of impairment before testing a given employee. In view of our conclusion that, on the present record, the toxicological testing contemplated by the regulations is not an undue infringement on the justifiable expectations of privacy of covered employees, the Government’s compelling interests outweigh privacy concerns.
IV
The possession of unlawful drugs is a criminal offense that the Government may punish, but it is a separate and far more dangerous wrong to perform certain sensitive tasks while under the influence of those substances. Performing those tasks while impaired by alcohol is, of course, equally dangerous, though consumption of alcohol is legal in most other contexts. The Government may take all necessary and reasonable regulatory steps to prevent or deter that hazardous conduct, and since the gravamen of the evil is performing certain functions while concealing the substance in the body, it may be necessary, as in the case before us, to examine the body or its fluids to accomplish the regulatory purpose. The necessity to perform that regulatory function with respect to railroad employees engaged in safety-sensitive tasks, and the reasonableness of the system for doing so, have been established in this case.
In light of the limited discretion exercised by the railroad employers under the regulations, the surpassing safety interests served by toxicological tests in this context, and the diminished expectation of privacy that attaches to information pertaining to the fitness of covered employees, we believe that it is reasonable to conduct such tests in the absence of a warrant or reasonable suspicion that any particular employee may be impaired. We hold that the alcohol and drug tests contemplated by Subparts C and D of the FRA’s regulations are reasonable within the meaning of the Fourth Amendment. The judgment of the Court of Appeals is accordingly reversed.
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
The issue in this case is not whether declaring a war on illegal drugs is good public policy. The importance of ridding our society of such drugs is, by now, apparent to all. Rather, the issue here is whether the Government’s deployment in that war of a particularly Draconian weapon—the compulsory collection and chemical testing of railroad workers’ blood and urine—comports with the Fourth Amendment. Precisely because the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great. History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. [W]hen we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.
In permitting the Government to force entire railroad crews to submit to invasive blood and urine tests, even when it lacks any evidence of drug or alcohol use or other wrongdoing, the majority today joins those shortsighted courts which have allowed basic constitutional rights to fall prey to momentary emergencies. The majority purports to limit its decision to postaccident testing of workers in “safety-sensitive” jobs. But the damage done to the Fourth Amendment is not so easily cabined. The majority’s acceptance of dragnet blood and urine testing ensures that the first, and worst, casualty of the war on drugs will be the precious liberties of our citizens. I therefore dissent.
Notes, Comments, and Questions
On the same day as Skinner, the Court decided National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), another case about drug testing public employees. A U.S. Customs Service program required drug testing of employees who sought promotion to jobs involving seizing illegal drugs or which required employees to carry firearms or handle classified materials. Again, the Court found the collection of urine samples to be a “search.” Again, the Court upheld the policy, holding that it was “reasonable” for the government to mandate the tests because of its “compelling interest in ensuring that front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment.” Comparing the practice to hypothetical searches of workers at “the United States Mint … when they leave the workplace every day,” the Court concluded that the “operational realities” of the Customs Service justified the testing.
By contrast, in Chandler v. Miller, 520 U.S. 305 (1997), the Court struck down a Georgia law requiring that candidates for certain state offices submit to drug tests. The state stressed “the incompatibility of unlawful drug use with holding high state office” and argued that “the use of illegal drugs draws into question an official’s judgment and integrity; jeopardizes the discharge of public functions, including antidrug law enforcement efforts; and undermines public confidence and trust in elected officials.” The Court was not persuaded, concluding, “[n]othing in the record hints that the hazards respondents broadly describe are real and not simply hypothetical for Georgia’s polity.” The Court noted that political candidates “are subject to relentless scrutiny—by their peers, the public, and the press.” The Justices stated that the suspicionless searches needed to track lower-profile employees—like those approved in Skinner and Von Raab—were not necessary for voters to vet candidates for election.
Drug Testing of Public School Students
The Court has repeatedly applied the reasoning of Skinner and Von Raab to public school policies that mandate the drug testing of certain students.
Supreme Court of the United States
Vernonia School District 47J v. Wayne Acton
Decided June 26, 1995 – 515 U.S. 646
Justice SCALIA delivered the opinion of the Court.
The Student Athlete Drug Policy adopted by School District 47J in the town of Vernonia, Oregon, authorizes random urinalysis drug testing of students who participate in the District’s school athletics programs. We granted certiorari to decide whether this violates the Fourth and Fourteenth Amendments to the United States Constitution.
A
Petitioner Vernonia School District 47J (District) operates one high school and three grade schools in the logging community of Vernonia, Oregon. As elsewhere in small-town America, school sports play a prominent role in the town’s life, and student athletes are admired in their schools and in the community.
Drugs had not been a major problem in Vernonia schools. In the mid-to-late 1980’s, however, teachers and administrators observed a sharp increase in drug use. Students began to speak out about their attraction to the drug culture, and to boast that there was nothing the school could do about it. Along with more drugs came more disciplinary problems. Between 1988 and 1989 the number of disciplinary referrals in Vernonia schools rose to more than twice the number reported in the early 1980’s, and several students were suspended. Students became increasingly rude during class; outbursts of profane language became common.
Not only were student athletes included among the drug users but, as the District Court found, athletes were the leaders of the drug culture. This caused the District’s administrators particular concern, since drug use increases the risk of sports-related injury. The high school football and wrestling coach witnessed a severe sternum injury suffered by a wrestler, and various omissions of safety procedures and misexecutions by football players, all attributable in his belief to the effects of drug use.
Initially, the District responded to the drug problem by offering special classes, speakers, and presentations designed to deter drug use. It even brought in a specially trained dog to detect drugs, but the drug problem persisted. At that point, District officials began considering a drug-testing program. They held a parent “input night” to discuss the proposed Student Athlete Drug Policy (Policy), and the parents in attendance gave their unanimous approval. The school board approved the Policy for implementation in the fall of 1989. Its expressed purpose is to prevent student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs.
B
The Policy applies to all students participating in interscholastic athletics. Students wishing to play sports must sign a form consenting to the testing and must obtain the written consent of their parents. Athletes are tested at the beginning of the season for their sport. In addition, once each week of the season the names of the athletes are placed in a “pool” from which a student, with the supervision of two adults, blindly draws the names of 10% of the athletes for random testing. Those selected are notified and tested that same day, if possible.
The student to be tested completes a specimen control form which bears an assigned number. Prescription medications that the student is taking must be identified by providing a copy of the prescription or a doctor’s authorization. The student then enters an empty locker room accompanied by an adult monitor of the same sex. Each boy selected produces a sample at a urinal, remaining fully clothed with his back to the monitor, who stands approximately 12 to 15 feet behind the student. Monitors may (though do not always) watch the student while he produces the sample, and they listen for normal sounds of urination. Girls produce samples in an enclosed bathroom stall, so that they can be heard but not observed. After the sample is produced, it is given to the monitor, who checks it for temperature and tampering and then transfers it to a vial.
The samples are sent to an independent laboratory, which routinely tests them for amphetamines, cocaine, and marijuana. Other drugs, such as LSD, may be screened at the request of the District, but the identity of a particular student does not determine which drugs will be tested. The laboratory’s procedures are 99.94% accurate. The District follows strict procedures regarding the chain of custody and access to test results. The laboratory does not know the identity of the students whose samples it tests. It is authorized to mail written test reports only to the superintendent and to provide test results to District personnel by telephone only after the requesting official recites a code confirming his authority. Only the superintendent, principals, vice-principals, and athletic directors have access to test results, and the results are not kept for more than one year.
If a sample tests positive, a second test is administered as soon as possible to confirm the result. If the second test is negative, no further action is taken. If the second test is positive, the athlete’s parents are notified, and the school principal convenes a meeting with the student and his parents, at which the student is given the option of (1) participating for six weeks in an assistance program that includes weekly urinalysis, or (2) suffering suspension from athletics for the remainder of the current season and the next athletic season. The student is then retested prior to the start of the next athletic season for which he or she is eligible. The Policy states that a second offense results in automatic imposition of option (2); a third offense in suspension for the remainder of the current season and the next two athletic seasons.
C
In the fall of 1991, respondent James Acton, then a seventh grader, signed up to play football at one of the District’s grade schools. He was denied participation, however, because he and his parents refused to sign the testing consent forms. The Actons filed suit, seeking declaratory and injunctive relief from enforcement of the Policy on the grounds that it violated the Fourth and Fourteenth Amendments to the United States Constitution. After a bench trial, the District Court entered an order denying the claims on the merits and dismissing the action. The United States Court of Appeals for the Ninth Circuit reversed, holding that the Policy violated both the Fourth and Fourteenth Amendments. We granted certiorari.
II
As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is “reasonableness.” [W]hether a particular search meets the reasonableness standard “‘is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’” Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant [supported by probable cause]. A search unsupported by probable cause can be constitutional, we have said, “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”
III
The first factor to be considered is the nature of the privacy interest upon which the search here at issue intrudes. Central, in our view, to the present case is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster.
Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere; the “reasonableness” inquiry cannot disregard the schools’ custodial and tutelary responsibility for children. For their own good and that of their classmates, public school children are routinely required to submit to various physical examinations, and to be vaccinated against various diseases.
Legitimate privacy expectations are even less with regard to student athletes. School sports are not for the bashful. They require “suiting up” before each practice or event, and showering and changing afterwards. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford. The locker rooms in Vernonia are typical: No individual dressing rooms are provided; shower heads are lined up along a wall, unseparated by any sort of partition or curtain; not even all the toilet stalls have doors. As the United States Court of Appeals for the Seventh Circuit has noted, there is “an element of ‘communal undress’ inherent in athletic participation.”
There is an additional respect in which school athletes have a reduced expectation of privacy. By choosing to “go out for the team,” they voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally. In Vernonia’s public schools, they must submit to a preseason physical exam (James testified that his included the giving of a urine sample), they must acquire adequate insurance coverage or sign an insurance waiver, maintain a minimum grade point average, and comply with any “rules of conduct, dress, training hours and related matters as may be established for each sport by the head coach and athletic director with the principal’s approval.” Somewhat like adults who choose to participate in a “closely regulated industry,” students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy.
IV
Having considered the scope of the legitimate expectation of privacy at issue here, we turn next to the character of the intrusion that is complained of. We recognized in Skinner that collecting the samples for urinalysis intrudes upon “an excretory function traditionally shielded by great privacy.” We noted, however, that the degree of intrusion depends upon the manner in which production of the urine sample is monitored. Under the District’s Policy, male students produce samples at a urinal along a wall. They remain fully clothed and are only observed from behind, if at all. Female students produce samples in an enclosed stall, with a female monitor standing outside listening only for sounds of tampering. These conditions are nearly identical to those typically encountered in public restrooms, which men, women, and especially schoolchildren use daily. Under such conditions, the privacy interests compromised by the process of obtaining the urine sample are in our view negligible.
The other privacy-invasive aspect of urinalysis is, of course, the information it discloses concerning the state of the subject’s body, and the materials he has ingested. In this regard it is significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic. Moreover, the drugs for which the samples are screened are standard, and do not vary according to the identity of the student. And finally, the results of the tests are disclosed only to a limited class of school personnel who have a need to know; and they are not turned over to law enforcement authorities or used for any internal disciplinary function.
V
Finally, we turn to consider the nature and immediacy of the governmental concern at issue here, and the efficacy of this means for meeting it. [T]he District Court held that because the District’s program also called for drug testing in the absence of individualized suspicion, the District “must demonstrate a ‘compelling need’ for the program.” The Court of Appeals appears to have agreed with this view. It is a mistake, however, to think that the phrase “compelling state interest,” in the Fourth Amendment context, describes a fixed, minimum quantum of governmental concern, so that one can dispose of a case by answering in isolation the question: Is there a compelling state interest here? Rather, the phrase describes an interest that appears important enough to justify the particular search at hand, in light of other factors that show the search to be relatively intrusive upon a genuine expectation of privacy. Whether that relatively high degree of government concern is necessary in this case or not, we think it is met.
That the nature of the concern is important—indeed, perhaps compelling—can hardly be doubted. School years are the time when the physical, psychological, and addictive effects of drugs are most severe. “Maturing nervous systems are more critically impaired by intoxicants than mature ones are; childhood losses in learning are lifelong and profound”; “children grow chemically dependent more quickly than adults, and their record of recovery is depressingly poor.” And of course the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, as the educational process is disrupted. In the present case, moreover, the necessity for the State to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction. Finally, it must not be lost sight of that this program is directed more narrowly to drug use by school athletes, where the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high. Apart from psychological effects, which include impairment of judgment, slow reaction time, and a lessening of the perception of pain, the particular drugs screened by the District’s Policy have been demonstrated to pose substantial physical risks to athletes. Amphetamines produce an “artificially induced heart rate increase, [p]eripheral vasoconstriction, [b]lood pressure increase, and [m]asking of the normal fatigue response,” making them a “very dangerous drug when used during exercise of any type.” Marijuana causes “[i]rregular blood pressure responses during changes in body position,” “[r]eduction in the oxygen-carrying capacity of the blood,” and “[i]nhibition of the normal sweating responses resulting in increased body temperature.” Cocaine produces “[v]asoconstriction[,] [e]levated blood pressure,” and “[p]ossible coronary artery spasms and myocardial infarction.”
As for the immediacy of the District’s concerns: We are not inclined to question—indeed, we could not possibly find clearly erroneous—the District Court’s conclusion that “a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion,” that “[d]isciplinary actions had reached ‘epidemic proportions,’” and that “the rebellion was being fueled by alcohol and drug abuse as well as by the student’s misperceptions about the drug culture.” That is an immediate crisis of greater proportions than existed in Skinner, where we upheld the Government’s drug-testing program based on findings of drug use by railroad employees nationwide, without proof that a problem existed on the particular railroads whose employees were subject to the test. And of much greater proportions than existed in Von Raab, where there was no documented history of drug use by any customs officials.
As to the efficacy of this means for addressing the problem: It seems to us self-evident that a drug problem largely fueled by the “role model” effect of athletes’ drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs. Respondents argue that a “less intrusive means to the same end” was available, namely, “drug testing on suspicion of drug use.” We have repeatedly refused to declare that only the “least intrusive” search practicable can be reasonable under the Fourth Amendment. Respondents’ alternative entails substantial difficulties—if it is indeed practicable at all. It may be impracticable, for one thing, simply because the parents who are willing to accept random drug testing for athletes are not willing to accept accusatory drug testing for all students, which transforms the process into a badge of shame. Respondents’ proposal brings the risk that teachers will impose testing arbitrarily upon troublesome but not drug-likely students. It generates the expense of defending lawsuits that charge such arbitrary imposition, or that simply demand greater process before accusatory drug testing is imposed. And not least of all, it adds to the ever-expanding diversionary duties of schoolteachers the new function of spotting and bringing to account drug abuse, a task for which they are ill prepared, and which is not readily compatible with their vocation. In many respects, we think, testing based on “suspicion” of drug use would not be better, but worse.
VI
Taking into account all the factors we have considered above—the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search—we conclude Vernonia’s Policy is reasonable and hence constitutional.
We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts. The most significant element in this case is the first we discussed: that the Policy was undertaken in furtherance of the government’s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care. Just as when the government conducts a search in its capacity as employer (a warrantless search of an absent employee’s desk to obtain an urgently needed file, for example), the relevant question is whether that intrusion upon privacy is one that a reasonable employer might engage in; so also when the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake. Given the findings of need made by the District Court, we conclude that in the present case it is.
We may note that the primary guardians of Vernonia’s schoolchildren appear to agree. The record shows no objection to this districtwide program by any parents other than the couple before us here—even though, as we have described, a public meeting was held to obtain parents’ views. We find insufficient basis to contradict the judgment of Vernonia’s parents, its school board, and the District Court, as to what was reasonably in the interest of these children under the circumstances.
We [] vacate the judgment, and remand the case to the Court of Appeals for further proceedings consistent with this opinion.
Justice O’CONNOR, with whom Justice STEVENS and Justice SOUTER join, dissenting.
The population of our Nation’s public schools, grades 7 through 12, numbers around 18 million. By the reasoning of today’s decision, the millions of these students who participate in interscholastic sports, an overwhelming majority of whom have given school officials no reason whatsoever to suspect they use drugs at school, are open to an intrusive bodily search.
In justifying this result, the Court dispenses with a requirement of individualized suspicion on considered policy grounds. First, it explains that precisely because every student athlete is being tested, there is no concern that school officials might act arbitrarily in choosing whom to test. Second, a broad-based search regime, the Court reasons, dilutes the accusatory nature of the search. In making these policy arguments, of course, the Court sidesteps powerful, countervailing privacy concerns. Blanket searches, because they can involve “thousands or millions” of searches, “pos[e] a greater threat to liberty” than do suspicion-based ones, which “affec[t] one person at a time.” Searches based on individualized suspicion also afford potential targets considerable control over whether they will, in fact, be searched because a person can avoid such a search by not acting in an objectively suspicious way. And given that the surest way to avoid acting suspiciously is to avoid the underlying wrongdoing, the costs of such a regime, one would think, are minimal.
But whether a blanket search is “better” than a regime based on individualized suspicion is not a debate in which we should engage. In my view, it is not open to judges or government officials to decide on policy grounds which is better and which is worse. For most of our constitutional history, mass, suspicionless searches have been generally considered per se unreasonable within the meaning of the Fourth Amendment. And we have allowed exceptions in recent years only where it has been clear that a suspicion-based regime would be ineffectual. Because that is not the case here, I dissent.
* * *
Seven years after deciding Vernonia, the Court considered a public school drug testing program that went beyond athletes and included participants in activities such as the debate team, band, and Future Farmers of America. While the district policy stated that students involved in any extracurricular activity could be tested, the record reflected that in practice testing was limited to participants in “competitive extracurricular activities.”
Supreme Court of the United States
Board of Education of Independent School District No. 92 of Pottawatomie County v. Lindsay Earls
Decided June 27, 2002 – 536 U.S. 822
[In Earls, the Court applied the principles of Vernonia and upheld a suspicionless drug testing policy that required all students who participated in “competitive extracurricular activities”—a term with broad definition—to submit to drug testing. In an opinion by Justice Thomas, the five-Justice majority found no meaningful difference between the policies challenged in Earls and in Vernonia in the character of intrusion (based on a similar urine collection method) or the nature and immediacy of the government’s concerns (based on the national drug problem and the factual findings about local conditions).
With respect to the students’ privacy interest, the Court was untroubled by the application of Vernonia to a broader category of student activities. The Court noted that required physicals and communal undress common to athletes were not essential to its finding of a negligible privacy interest in Vernonia, and it concluded the interest remained negligible in Earls because the students “who participate[d] in competitive extracurricular activities voluntarily subject[ed] themselves to many of the same intrusions on their privacy as do athletes.” The Court’s analysis of the efficacy of the Policy’s approach broadened Vernonia’s holding:
“Finally, we find that testing students who participate in extracurricular activities is a reasonably effective means of addressing the School District’s legitimate concerns in preventing, deterring, and detecting drug use. While in Vernonia there might have been a closer fit between the testing of athletes and the trial court’s finding that the drug problem was “fueled by the ‘role model’ effect of athletes’ drug use,” such a finding was not essential to the holding. Vernonia did not require the school to test the group of students most likely to use drugs, but rather considered the constitutionality of the program in the context of the public school’s custodial responsibilities. Evaluating the Policy in this context, we conclude that the drug testing of Tecumseh students who participate in extracurricular activities effectively serves the School District’s interest in protecting the safety and health of its students.”
Four Justices sharply disagreed with the result:]
Justice GINSBURG, with whom Justice STEVENS, JUSTICE O’CONNOR, and Justice SOUTER join, dissenting.
The particular testing program upheld today is not reasonable; it is capricious, even perverse: Petitioners’ policy targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects. I therefore dissent.
Vernonia cannot be read to endorse invasive and suspicionless drug testing of all students upon any evidence of drug use, solely because drugs jeopardize the life and health of those who use them. Had the Vernonia Court agreed that public school attendance, in and of itself, permitted the State to test each student’s blood or urine for drugs, the opinion in Vernonia could have saved many words.
Enrollment in a public school, and election to participate in school activities beyond the bare minimum that the curriculum requires, are indeed factors relevant to reasonableness, but they do not on their own justify intrusive, suspicionless searches. Vernonia, accordingly, did not rest upon these factors; instead, the Court performed what today’s majority aptly describes as a “fact-specific balancing,” Balancing of that order, applied to the facts now before the Court, should yield a result other than the one the Court announces today.
At the margins, of course, no policy of random drug testing is perfectly tailored to the harms it seeks to address. The School District cites the dangers faced by members of the band, who must “perform extremely precise routines with heavy equipment and instruments in close proximity to other students,” and by Future Farmers of America, who “are required to individually control and restrain animals as large as 1500 pounds.” Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree. There is a difference between imperfect tailoring and no tailoring at all.
The Vernonia district, in sum, had two good reasons for testing athletes: Sports team members faced special health risks and they “were the leaders of the drug culture.” No similar reason, and no other tenable justification, explains Tecumseh’s decision to target for testing all participants in every competitive extracurricular activity.
Nationwide, students who participate in extracurricular activities are significantly less likely to develop substance abuse problems than are their less-involved peers. Even if students might be deterred from drug use in order to preserve their extracurricular eligibility, it is at least as likely that other students might forgo their extracurricular involvement in order to avoid detection of their drug use. Tecumseh’s policy thus falls short doubly if deterrence is its aim: It invades the privacy of students who need deterrence least, and risks steering students at greatest risk for substance abuse away from extracurricular involvement that potentially may palliate drug problems.
Notes, Comments, and Questions
Since the Court decided Vernonia and Earls, public schools have continued to explore how much of the student population can be subjected to mandatory drug testing. Although courts have not yet approved a policy mandating the testing of all students at a public school, school districts have been largely successful in requiring testing of broad portions of the student population.
Consider these examples:
Some schools have required students to submit to drug testing if they wish to park on school grounds. See, e.g., Joy v. Penn-Harris-Madison School Corp., 212 F.3d 1052 (7th Cir. 2000). Lawful? Why or why not?
A public technical college adopted a policy requiring that all students at the college submit to drug tests. See Kittle-Aikeley v. Strong, 844 F.3d 727 (8th Cir. 2016) (en banc). Lawful? Why or why not? What if the policy applied only to students in certain academic programs?
In the case of the technical college, the Eighth Circuit upheld mandatory drug testing of students enrolled in “safety-sensitive programs.” Dissenting judges would have allowed testing of all students because there was no reason “to assume that [the college’s] students pursuing an education in its non-safety-sensitive programs are not likewise fully impacted by the same illicit drug-abuse crisis” that justified the testing of students in safety-sensitive programs. Other courts could reach different results in similar cases.
According to a national survey of school districts, many public schools operate drug testing programs that involve random testing of all students, seemingly in excess of what the Court has allowed. See Chris Ringwalt et al., “Random Drug Testing in US Public School Districts,” 98 Am. J. Pub. Health 826 (May 2008) (“28% randomly tested all students”). Further litigation on this issue seems likely.
Drug Testing of Public Hospital Patients
In Ferguson v. City of Charleston, the Court considered a public hospital’s practice of testing patient urine for drugs to learn whether pregnant women were using cocaine. It applied the reasoning of the public employee and public school student drug test cases to the program.
Supreme Court of the United States
Crystal M. Ferguson v. City of Charleston
Decided March 21, 2001 – 532 U.S. 67
Justice STEVENS delivered the opinion of the Court.
In this case, we must decide whether a state hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure. More narrowly, the question is whether the interest in using the threat of criminal sanctions to deter pregnant women from using cocaine can justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant.
I
In the fall of 1988, staff members at the public hospital operated in the city of Charleston by the Medical University of South Carolina (MUSC) became concerned about an apparent increase in the use of cocaine by patients who were receiving prenatal treatment.1 In response to this perceived increase, as of April 1989, MUSC began to order drug screens to be performed on urine samples from maternity patients who were suspected of using cocaine. If a patient tested positive, she was then referred by MUSC staff to the county substance abuse commission for counseling and treatment. However, despite the referrals, the incidence of cocaine use among the patients at MUSC did not appear to change.
Some four months later, Nurse Shirley Brown, the case manager for the MUSC obstetrics department, heard a news broadcast reporting that the police in Greenville, South Carolina, were arresting pregnant users of cocaine on the theory that such use harmed the fetus and was therefore child abuse. Nurse Brown discussed the story with MUSC’s general counsel, Joseph C. Good, Jr., who then contacted Charleston Solicitor Charles Condon in order to offer MUSC’s cooperation in prosecuting mothers whose children tested positive for drugs at birth.
After receiving Good’s letter, Solicitor Condon took the first steps in developing the policy at issue in this case. He organized the initial meetings, decided who would participate, and issued the invitations, in which he described his plan to prosecute women who tested positive for cocaine while pregnant. The task force that Condon formed included representatives of MUSC, the police, the County Substance Abuse Commission and the Department of Social Services. Their deliberations led to MUSC’s adoption of a 12-page document entitled “POLICY M-7,” dealing with the subject of “Management of Drug Abuse During Pregnancy.”
The first three pages of Policy M-7 set forth the procedure to be followed by the hospital staff to “identify/assist pregnant patients suspected of drug abuse.” The first section, entitled the “Identification of Drug Abusers,” provided that a patient should be tested for cocaine through a urine drug screen if she met one or more of nine criteria.2 It also stated that a chain of custody should be followed when obtaining and testing urine samples, presumably to make sure that the results could be used in subsequent criminal proceedings. The policy also provided for education and referral to a substance abuse clinic for patients who tested positive. Most important, it added the threat of law enforcement intervention that “provided the necessary ‘leverage’ to make the [p]olicy effective.” That threat was, as respondents candidly acknowledge, essential to the program’s success in getting women into treatment and keeping them there.
The threat of law enforcement involvement was set forth in two protocols, the first dealing with the identification of drug use during pregnancy, and the second with identification of drug use after labor. Under the latter protocol, the police were to be notified without delay and the patient promptly arrested. Under the former, after the initial positive drug test, the police were to be notified (and the patient arrested) only if the patient tested positive for cocaine a second time or if she missed an appointment with a substance abuse counselor. In 1990, however, the policy was modified at the behest of the solicitor’s office to give the patient who tested positive during labor, like the patient who tested positive during a prenatal care visit, an opportunity to avoid arrest by consenting to substance abuse treatment.
The last six pages of the policy contained forms for the patients to sign, as well as procedures for the police to follow when a patient was arrested. The policy also prescribed in detail the precise offenses with which a woman could be charged, depending on the stage of her pregnancy. If the pregnancy was 27 weeks or less, the patient was to be charged with simple possession. If it was 28 weeks or more, she was to be charged with possession and distribution to a person under the age of 18—in this case, the fetus. If she delivered “while testing positive for illegal drugs,” she was also to be charged with unlawful neglect of a child. Under the policy, the police were instructed to interrogate the arrestee in order “to ascertain the identity of the subject who provided illegal drugs to the suspect.” Other than the provisions describing the substance abuse treatment to be offered to women who tested positive, the policy made no mention of any change in the prenatal care of such patients, nor did it prescribe any special treatment for the newborns.
II
Petitioners are 10 women who received obstetrical care at MUSC and who were arrested after testing positive for cocaine. Four of them were arrested during the initial implementation of the policy; they were not offered the opportunity to receive drug treatment as an alternative to arrest. The others were arrested after the policy was modified in 1990; they either failed to comply with the terms of the drug treatment program or tested positive for a second time. Respondents include the city of Charleston, law enforcement officials who helped develop and enforce the policy, and representatives of MUSC.
Petitioners’ complaint challenged the validity of the policy. The jury found for respondents. Petitioners appealed [and] [t]he Court of Appeals for the Fourth Circuit affirmed. We granted certiorari to review the appellate court’s holding on the “special needs” issue.3 We conclude that the judgment should be reversed and the case remanded for a decision on the consent issue.
III
Because MUSC is a state hospital, the members of its staff are government actors, subject to the strictures of the Fourth Amendment. Moreover, the urine tests conducted by those staff members were indisputably searches within the meaning of the Fourth Amendment. Neither the District Court nor the Court of Appeals concluded that any of the nine criteria used to identify the women to be searched provided either probable cause to believe that they were using cocaine, or even the basis for a reasonable suspicion of such use. Furthermore, given the posture in which the case comes to us, we must assume for purposes of our decision that the tests were performed without the informed consent of the patients.
Because the hospital seeks to justify its authority to conduct drug tests and to turn the results over to law enforcement agents without the knowledge or consent of the patients, this case differs from the four previous cases in which we have considered whether comparable drug tests “fit within the closely guarded category of constitutionally permissible suspicionless searches.”
In each of those cases, we employed a balancing test that weighed the intrusion on the individual’s interest in privacy against the “special needs” that supported the program. As an initial matter, we note that the invasion of privacy in this case is far more substantial than in those cases. In the previous four cases, there was no misunderstanding about the purpose of the test or the potential use of the test results, and there were protections against the dissemination of the results to third parties. The use of an adverse test result to disqualify one from eligibility for a particular benefit, such as a promotion or an opportunity to participate in an extracurricular activity, involves a less serious intrusion on privacy than the unauthorized dissemination of such results to third parties. The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent. In none of our prior cases was there any intrusion upon that kind of expectation.
The critical difference between those four drug-testing cases and this one, however, lies in the nature of the “special need” asserted as justification for the warrantless searches. In each of those earlier cases, the “special need” that was advanced as a justification for the absence of a warrant or individualized suspicion was one divorced from the State’s general interest in law enforcement. In this case, however, the central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment. This fact distinguishes this case from circumstances in which physicians or psychologists, in the course of ordinary medical procedures aimed at helping the patient herself, come across information that under rules of law or ethics is subject to reporting requirements, which no one has challenged here.
Respondents argue in essence that their ultimate purpose—namely, protecting the health of both mother and child—is a beneficent one. [A] review of the M-7 policy plainly reveals that the purpose actually served by the MUSC searches “is ultimately indistinguishable from the general interest in crime control.”
In looking to the programmatic purpose, we consider all the available evidence in order to determine the relevant primary purpose. In this case, as Judge Blake put it in her dissent below, “it … is clear from the record that an initial and continuing focus of the policy was on the arrest and prosecution of drug-abusing mothers….” Tellingly, the document codifying the policy incorporates the police’s operational guidelines. It devotes its attention to the chain of custody, the range of possible criminal charges, and the logistics of police notification and arrests. Nowhere, however, does the document discuss different courses of medical treatment for either mother or infant, aside from treatment for the mother’s addiction. Moreover, throughout the development and application of the policy, the Charleston prosecutors and police were extensively involved in the day-to-day administration of the policy.
While the ultimate goal of the program may well have been to get the women in question into substance abuse treatment and off of drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal. The threat of law enforcement may ultimately have been intended as a means to an end, but the direct and primary purpose of MUSC’s policy was to ensure the use of those means. In our opinion, this distinction is critical. Because law enforcement involvement always serves some broader social purpose or objective, under respondents’ view, virtually any nonconsensual suspicionless search could be immunized under the special needs doctrine by defining the search solely in terms of its ultimate, rather than immediate, purpose. Such an approach is inconsistent with the Fourth Amendment. Given the primary purpose of the Charleston program, which was to use the threat of arrest and prosecution in order to force women into treatment, and given the extensive involvement of law enforcement officials at every stage of the policy, this case simply does not fit within the closely guarded category of “special needs.”
The fact that positive test results were turned over to the police does not merely provide a basis for distinguishing our prior cases applying the “special needs” balancing approach to the determination of drug use. It also provides an affirmative reason for enforcing the strictures of the Fourth Amendment. While state hospital employees, like other citizens, may have a duty to provide the police with evidence of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require.
As respondents have repeatedly insisted, their motive was benign rather than punitive. Such a motive, however, cannot justify a departure from Fourth Amendment protections, given the pervasive involvement of law enforcement with the development and application of the MUSC policy. The stark and unique fact that characterizes this case is that Policy M-7 was designed to obtain evidence of criminal conduct by the tested patients that would be turned over to the police and that could be admissible in subsequent criminal prosecutions. While respondents are correct that drug abuse both was and is a serious problem, “the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.” The Fourth Amendment’s general prohibition against nonconsensual, warrantless, and suspicionless searches necessarily applies to such a policy.
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
[In a dissent joined by Chief Justice Roberts and Justice Thomas, Justice Scalia attacked the majority opinion on multiple fronts. First, he disputed whether any Fourth Amendment “search” had occurred, arguing that eliminated urine is abandoned and should be treated like the garbage at issue in California v. Greenwood (Chapter 3). Second, he argued that patients consented to the collection of urine by hospital officials. Finally he argued that even if somehow the hospital’s collection of urine were a search to which patients did not consent, the “special-needs doctrine” would easily justify the drug testing to “protect both mother and unborn child.”]
Notes, Comments, and Questions
Although no one today would recommend use of crack cocaine by pregnant women, it turns out that much of the science behind the so-called “crack baby” epidemic has been debunked. Predictions like that of “a bio-underclass, a generation of physically damaged cocaine babies whose biological inferiority is stamped at birth”—from a 1989 column in the Washington Post—or a flood of 4 million kids whose “neurological, emotional and learning problems will severely test teachers and schools”—from a 1990 article in the New York Timesappear alarmist in hindsight. See Vann R. Newkirk II, “What the ‘Crack Baby’ Panic Reveals about the Opioid Epidemic,” Atlantic (July 16, 2017) (noting the greater empathy extended to pregnant women using opiates than was shown to crack-addicted mothers). Legal scholars noted that in the late 1980s, a trend emerged wherein prosecutors used laws previously used to punish abuse of children after birth—such as involuntary manslaughter and delivery of drugs to a minor—to prosecute pregnant drug users. See, e.g., Doretta Massardo McGinnis, Comment, “Prosecution of Mothers of Drug-Exposed Babies: Constitutional and Criminal Theory,” 139 U. Pa. L. Rev. 505 (1990).
Had Ferguson v. City of Charleston been decided in 1991 instead of 2001, the Court might well have reached a different result. The concerns raised by Justice Scalia in his dissent—the need to “protect both mother and unborn child”—echo comments of pundits and of policy makers from the height of the crack-baby scare.
In our next chapter, we consider our final selection of exceptions to the warrant requirement. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.16%3A_Chapter_17_The_Warrant_Requirement_-_Exceptions.txt |
In this chapter, we conclude our review of exceptions to the warrant requirement. In particular, we will examine: (1) searches of persons in jails, (2) searches of persons on probation and parole, (3) inventory searches, (4) administrative searches, and (5) DNA tests of arrested persons.
Warrant Exception: Searches of Persons in Jails and Prisons
To maintain order and safety in jails and prisons, correctional officers must conduct searches of inmates and their effects. The next case explores the limits of this authority, as well as whether the offense for which someone is jailed affects what searches are reasonable.
Supreme Court of the United States
Albert W. Florence v. Board of Chosen Freeholders of the County of Burlington
Decided April 2, 2012—566 U.S. 318
Justice KENNEDY delivered the opinion of the Court, except as to Part IV.1
I
In 1998, seven years before the incidents at issue, petitioner Albert Florence was arrested after fleeing from police officers in Essex County, New Jersey. He was charged with obstruction of justice and use of a deadly weapon. Petitioner entered a plea of guilty to two lesser offenses and was sentenced to pay a fine in monthly installments. In 2003, after he fell behind on his payments and failed to appear at an enforcement hearing, a bench warrant was issued for his arrest. He paid the outstanding balance less than a week later; but, for some unexplained reason, the warrant remained in a statewide computer database.
Two years later, in Burlington County, New Jersey, petitioner and his wife were stopped in their automobile by a state trooper. Based on the outstanding warrant in the computer system, the officer arrested petitioner and took him to the Burlington County Detention Center. He was held there for six days and then was transferred to the Essex County Correctional Facility. It is not the arrest or confinement but the search process at each jail that gives rise to the claims before the Court.
Burlington County jail procedures required every arrestee to shower with a delousing agent. Officers would check arrestees for scars, marks, gang tattoos, and contraband as they disrobed. Petitioner claims he was also instructed to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. (It is not clear whether this last step was part of the normal practice.) Petitioner shared a cell with at least one other person and interacted with other inmates following his admission to the jail.
When petitioner was transferred [to the Essex County facility], all arriving detainees passed through a metal detector and waited in a group holding cell for a more thorough search. When they left the holding cell, they were instructed to remove their clothing while an officer looked for body markings, wounds, and contraband. Apparently without touching the detainees, an officer looked at their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings. This policy applied regardless of the circumstances of the arrest, the suspected offense, or the detainee’s behavior, demeanor, or criminal history. Petitioner alleges he was required to lift his genitals, turn around, and cough in a squatting position as part of the process. After a mandatory shower, during which his clothes were inspected, petitioner was admitted to the facility. He was released the next day, when the charges against him were dismissed.
Petitioner sued the governmental entities that operated the jails, one of the wardens, and certain other defendants. Seeking relief under 42 U.S.C. § 1983 for violations of his Fourth and Fourteenth Amendment rights, petitioner maintained that persons arrested for a minor offense could not be required to remove their clothing and expose the most private areas of their bodies to close visual inspection as a routine part of the intake process. The District Court certified a class of individuals who were charged with a nonindictable offense under New Jersey law, processed at either the Burlington County or Essex County jail, and directed to strip naked even though an officer had not articulated any reasonable suspicion they were concealing contraband.
After discovery, the court granted petitioner’s motion for summary judgment on the unlawful search claim. A divided panel of the United States Court of Appeals for the Third Circuit reversed. This Court granted certiorari.
II
The difficulties of operating a detention center must not be underestimated by the courts. Jails (in the stricter sense of the term, excluding prison facilities) admit more than 13 million inmates a year. The largest facilities process hundreds of people every day; smaller jails may be crowded on weekend nights, after a large police operation, or because of detainees arriving from other jurisdictions. Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face. The Court has confirmed the importance of deference to correctional officials and explained that a regulation impinging on an inmate’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.”
The Court has [] recognized that deterring the possession of contraband depends in part on the ability to conduct searches without predictable exceptions. [C]orrectional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities. The task of determining whether a policy is reasonably related to legitimate security interests is “peculiarly within the province and professional expertise of corrections officials.”
In many jails officials seek to improve security by requiring some kind of strip search of everyone who is to be detained. Persons arrested for minor offenses may be among the detainees processed at these facilities.
III
The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband. The Court has held that deference must be given to the officials in charge of the jail unless there is “substantial evidence” demonstrating their response to the situation is exaggerated. Petitioner has not met this standard, and the record provides full justifications for the procedures used.
A
Correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process. The admission of inmates creates numerous risks for facility staff, for the existing detainee population, and for a new detainee himself or herself. The danger of introducing lice or contagious infections, for example, is well documented. The Federal Bureau of Prisons recommends that staff screen new detainees for these conditions. Persons just arrested may have wounds or other injuries requiring immediate medical attention. It may be difficult to identify and treat these problems until detainees remove their clothes for a visual inspection.
Jails and prisons also face grave threats posed by the increasing number of gang members who go through the intake process. “Gang rivalries spawn a climate of tension, violence, and coercion.” The groups recruit new members by force, engage in assaults against staff, and give other inmates a reason to arm themselves. Fights among feuding gangs can be deadly, and the officers who must maintain order are put in harm’s way. These considerations provide a reasonable basis to justify a visual inspection for certain tattoos and other signs of gang affiliation as part of the intake process. The identification and isolation of gang members before they are admitted protects everyone in the facility.
Detecting contraband concealed by new detainees, furthermore, is a most serious responsibility. Weapons, drugs, and alcohol all disrupt the safe operation of a jail. Correctional officers have had to confront arrestees concealing knives, scissors, razor blades, glass shards, and other prohibited items on their person, including in their body cavities. They have also found crack, heroin, and marijuana. The use of drugs can embolden inmates in aggression toward officers or each other; and, even apart from their use, the trade in these substances can lead to violent confrontations.
Contraband creates additional problems because scarce items, including currency, have value in a jail’s culture and underground economy. Correctional officials inform us “[t]he competition … for such goods begets violence, extortion, and disorder.” They “orchestrate thefts, commit assaults, and approach inmates in packs to take the contraband from the weak.” This puts the entire facility, including detainees being held for a brief term for a minor offense, at risk. Gangs do coerce inmates who have access to the outside world, such as people serving their time on the weekends, to sneak things into the jail. These inmates, who might be thought to pose the least risk, have been caught smuggling prohibited items into jail.
It is not surprising that correctional officials have sought to perform thorough searches at intake for disease, gang affiliation, and contraband. Jails are often crowded, unsanitary, and dangerous places. There is a substantial interest in preventing any new inmate, either of his own will or as a result of coercion, from putting all who live or work at these institutions at even greater risk when he is admitted to the general population.
B
Petitioner acknowledges that correctional officials must be allowed to conduct an effective search during the intake process and that this will require at least some detainees to lift their genitals or cough in a squatting position. These procedures [] are designed to uncover contraband that can go undetected by a patdown, metal detector, and other less invasive searches. Petitioner maintains there is little benefit to conducting these more invasive steps on a new detainee who has not been arrested for a serious crime or for any offense involving a weapon or drugs. In his view these detainees should be exempt from this process unless they give officers a particular reason to suspect them of hiding contraband. It is reasonable, however, for correctional officials to conclude this standard would be unworkable.
Experience shows that people arrested for minor offenses have tried to smuggle prohibited items into jail, sometimes by using their rectal cavities or genitals for the concealment. They may have some of the same incentives as a serious criminal to hide contraband. A detainee might risk carrying cash, cigarettes, or a penknife to survive in jail. Others may make a quick decision to hide unlawful substances to avoid getting in more trouble at the time of their arrest.
Even if people arrested for a minor offense do not themselves wish to introduce contraband into a jail, they may be coerced into doing so by others. This could happen any time detainees are held in the same area, including in a van on the way to the station or in the holding cell of the jail. If, for example, a person arrested and detained for unpaid traffic citations is not subject to the same search as others, this will be well known to other detainees with jail experience. A hardened criminal or gang member can, in just a few minutes, approach the person and coerce him into hiding the fruits of a crime, a weapon, or some other contraband. As an expert in this case explained, “the interaction and mingling between misdemeanants and felons will only increase the amount of contraband in the facility if the jail can only conduct admission searches on felons.” Exempting people arrested for minor offenses from a standard search protocol thus may put them at greater risk and result in more contraband being brought into the detention facility. This is a substantial reason not to mandate the exception petitioner seeks as a matter of constitutional law.
It also may be difficult, as a practical matter, to classify inmates by their current and prior offenses before the intake search. Jails can be even more dangerous than prisons because officials there know so little about the people they admit at the outset. An arrestee may be carrying a false ID or lie about his identity. The officers who conduct an initial search often do not have access to criminal history records.
IV
This case does not require the Court to rule on the types of searches that would be reasonable in instances where, for example, a detainee will be held without assignment to the general jail population and without substantial contact with other detainees. Petitioner’s amici raise concerns about instances of officers engaging in intentional humiliation and other abusive practices. There also may be legitimate concerns about the invasiveness of searches that involve the touching of detainees. These issues are not implicated on the facts of this case, however, and it is unnecessary to consider them here.
V
Even assuming all the facts in favor of petitioner, the search procedures at the Burlington County Detention Center and the Essex County Correctional Facility struck a reasonable balance between inmate privacy and the needs of the institutions. The Fourth and Fourteenth Amendments do not require adoption of the framework of rules petitioner proposes.
The judgment of the Court of Appeals for the Third Circuit is affirmed.
Justice ALITO, concurring.
I join the opinion of the Court but emphasize the limits of today’s holding. It is important to note [] that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population. Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time of their initial appearance before a magistrate. In some cases, the charges are dropped. In others, arrestees are released either on their own recognizance or on minimal bail. In the end, few are sentenced to incarceration. For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible. For example, the Federal Bureau of Prisons (BOP) and possibly even some local jails appear to segregate temporary detainees who are minor offenders from the general population.
The Court does not address whether it is always reasonable, without regard to the offense or the reason for detention, to strip search an arrestee before the arrestee’s detention has been reviewed by a judicial officer. The lead opinion explicitly reserves judgment on that question. In light of that limitation, I join the opinion of the Court in full.
Justice BREYER, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN join, dissenting.
The petition for certiorari asks us to decide “[w]hether the Fourth Amendment permits a … suspicionless strip search of every individual arrested for any minor offense….” This question is phrased more broadly than what is at issue. The case is limited to strip searches of those arrestees entering a jail’s general population. And the kind of strip search in question involves more than undressing and taking a shower (even if guards monitor the shower area for threatened disorder). Rather, the searches here involve close observation of the private areas of a person’s body and for that reason constitute a far more serious invasion of that person’s privacy.
In my view, such a search of an individual arrested for a minor offense that does not involve drugs or violence—say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor—is an “unreasonable searc[h]” forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband. And I dissent from the Court’s contrary determination.
A strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person’s body, is a serious invasion of privacy. Even when carried out in a respectful manner, and even absent any physical touching, such searches are inherently harmful, humiliating, and degrading. And the harm to privacy interests would seem particularly acute where the person searched may well have no expectation of being subject to such a search, say, because she had simply received a traffic ticket for failing to buckle a seatbelt, because he had not previously paid a civil fine, or because she had been arrested for a minor trespass.
I doubt that we seriously disagree about the nature of the strip search or about the serious affront to human dignity and to individual privacy that it presents. The basic question before us is whether such a search is nonetheless justified when an individual arrested for a minor offense is involuntarily placed in the general jail or prison population.
The majority, like the respondents, argues that strip searches are needed (1) to detect injuries or diseases, such as lice, that might spread in confinement, (2) to identify gang tattoos, which might reflect a need for special housing to avoid violence, and (3) to detect contraband, including drugs, guns, knives, and even pens or chewing gum, which might prove harmful or dangerous in prison.
Nonetheless, the “particular” invasion of interests must be “‘reasonably related’” to the justifying “penological interest” and the need must not be “‘exaggerated.’” It is at this point that I must part company with the majority. I have found no convincing reason indicating that, in the absence of reasonable suspicion, involuntary strip searches of those arrested for minor offenses are necessary in order to further the penal interests mentioned. And there are strong reasons to believe they are not justified.
The lack of justification is fairly obvious with respect to the first two penological interests advanced. The searches already employed at Essex and Burlington include: (a) pat-frisking all inmates; (b) making inmates go through metal detectors (including the Body Orifice Screening System (BOSS) chair used at Essex County Correctional Facility that identifies metal hidden within the body); (c) making inmates shower and use particular delousing agents or bathing supplies; and (d) searching inmates’ clothing. In addition, petitioner concedes that detainees could be lawfully subject to being viewed in their undergarments by jail officers or during showering (for security purposes). No one here has offered any reason, example, or empirical evidence suggesting the inadequacy of such practices for detecting injuries, diseases, or tattoos. In particular, there is no connection between the genital lift and the “squat and cough” that Florence was allegedly subjected to and health or gang concerns.
The lack of justification for such a strip search is less obvious but no less real in respect to the third interest, namely that of detecting contraband. The information demonstrating the lack of justification is of three kinds. First, there are empirically based conclusions reached in specific cases. The New York Federal District Court [] conducted a study of 23,000 persons admitted to the Orange County correctional facility between 1999 and 2003. These 23,000 persons underwent a strip search of the kind described. Of these 23,000 persons, the court wrote, “the County encountered three incidents of drugs recovered from an inmate’s anal cavity and two incidents of drugs falling from an inmate’s underwear during the course of a strip search.” The court added that in four of these five instances there may have been “reasonable suspicion” to search, leaving only one instance in 23,000 in which the strip search policy “arguably” detected additional contraband.
Second, there is the plethora of recommendations of professional bodies, such as correctional associations, that have studied and thoughtfully considered the matter. The American Correctional Association (ACA)—an association that informs our view of “what is obtainable and what is acceptable in corrections philosophy”—has promulgated a standard that forbids suspicionless strip searches. And it has done so after consultation with the American Jail Association, National Sheriff’s Association, National Institute of Corrections of the Department of Justice, and Federal Bureau of Prisons. Moreover, many correctional facilities apply a reasonable suspicion standard before strip searching inmates entering the general jail population, including the U.S. Marshals Service, the Immigration and Customs Service, and the Bureau of Indian Affairs.
Third, there is general experience in areas where the law has forbidden here-relevant suspicionless searches. Laws in at least 10 States prohibit suspicionless strip searches. At the same time at least seven Courts of Appeals have considered the question and have required reasonable suspicion that an arrestee is concealing weapons or contraband before a strip search of one arrested for a minor offense can take place. Respondents have not presented convincing grounds to believe that administration of these legal standards has increased the smuggling of contraband into prison. The majority is left with the word of prison officials in support of its contrary proposition. And though that word is important, it cannot be sufficient.
For the reasons set forth, I cannot find justification for the strip search policy at issue here—a policy that would subject those arrested for minor offenses to serious invasions of their personal privacy. I consequently dissent.
Notes, Comments, and Questions
The Court in Florence did not conclude that the challenged jail policy was in keeping with best correctional practices. Indeed, organizations of officials who run jails and prisons recommend against the kind of strip searches at issue in the case, and the Court was fully aware of this opposition. Why then did the Court find against Florence?
The dissenting Justices mention the Body Orifice Screening System (BOSS) chair, which allows jail officials to search inmates for hidden contraband without the sort of invasive physical contact complained of by Florence. More information about these scanners is available at the XECU Corporation website: bodyorificescanner.com.
Compare how the Court treats searches in jail with those of public school students. Unsurprisingly, the Court is more receptive to privacy claims from school children than from jail inmates. Yet in both contexts, the Court tends to defer to public officials.
Warrant Exception: Searches of Probationers and Parolees
Although persons on probation and parole are not subjected to the sort of control and scrutiny experienced by jail and prison inmates, probationers and parolees must submit to searches that would be “unreasonable” if required of other persons.
Because probationers and parolees by definition have been convicted of crimes, they are often known to police and may be suspected of ongoing criminal activity. In United States v. Knights, 534 U.S. 112 (2001), the Court considered the search of a probationer’s house. When Mark Knights was convicted of a drug crime, his probation order included what is sometimes described as a “search condition.” The order stated that he would: “[s]ubmit his … person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer.”
Soon afterward, police investigating a series of arsons suspected Knights and a partner of involvement in the crimes, and an officer searched Knights’s apartment. Evidence found during the search would have helped prosecutors convict him of federal crimes, and he challenged the searches as unreasonable under the Fourth Amendment. The trial court suppressed the evidence “on the ground that the search was for ‘investigatory’ rather than ‘probationary’ purposes,” and the Ninth Circuit affirmed. The Supreme Court reversed, holding that the searches were reasonable. The Court noted that “nothing in the condition of probation suggests that it was confined to searches bearing upon probationary status and nothing more.”
Previously, in Griffin v. Wisconsin, 483 U.S. 868 (1987), the Court had upheld the search of a probationer under a state law allowing “any probation officer to search a probationer’s home without a warrant as long as his supervisor approves and as long as there are ‘reasonable grounds’ to believe the presence of contraband.” Knights argued that searches of probationers are allowed only if, as in Griffin, they are “special needs” searches conducted to verify whether the probationer is obeying conditions of probation, such as abstaining from drug use. The Knights Court disagreed, holding that the search condition reduced Knights’s reasonable expectation of privacy. That reduction, combined with the reasonable suspicion police had of his involvement in the arsons under investigation, justified the search of his residence. The Court explicitly declined to decide whether his acceptance of the search condition was a form of “consent” that would have made the search lawful under the holdings of Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (Chapter 11), and similar cases.
Then, in Samson v. California, 547 U.S. 843 (2006), the Court approved the suspicionless search of a parolee on the street. The case concerned a “California law provid[ing] that every prisoner eligible for release on state parole ‘shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.’” Upon seeing Donald Samson on the street, an officer searched him “based solely on petitioner’s status as a parolee,” and the search revealed methamphetamine. Samson challenged the search as unreasonable, and the Court disagreed. Relying on Knights, the Court again declined to consider whether the “consent” exception to the warrant requirement applied. The Court held instead that the search of parolees is reasonable because (1) awareness of the state law authorizing such searches lowers a parolee’s reasonable expectation of privacy, and (2) the state has substantial interest in monitoring convicted criminals released on parole because they “are more likely to commit future criminal offenses” than the general population.
In a dissent joined by Justices Souter and Breyer, Justice Stevens argued that “neither Knights nor Griffin supports a regime of suspicionless searches, conducted pursuant to a blanket grant of discretion untethered by any procedural safeguards, by law enforcement personnel who have no special interest in the welfare of the parolee or probationer.”
Although the Court has not formally relied upon the “consent” exception when approving searches of probationers (with reasonable suspicion) and parolees (with no individualized suspicion at all), it is hard to ignore the Court’s reliance on the searched person’s knowledge of and acceptance of the search conditions. Probation and parole are alternatives to imprisonment, and convicted defendants generally prefer probation to incarceration, just as inmates generally prefer parole to continued confinement. The Court’s opinions in Knights and Samson seem based, in part, on the idea that someone who is unhappy with the state’s parole or probation system can choose not to participate. The dissenters in Samson attacked this theory and rejected the state’s argument that participation is a form of consent. They wrote that a convict “has no ‘choice’ concerning the search condition” and argued that equating acquiescence with consent “is sophistry.”
For a handful of lower court cases examining searches of parolees and probationers, see: [casetext.com].
Note that there is a circuit split about whether an officer may (consistent with the Fourth Amendment) search a probationer’s home without a warrant even without a search condition. See [UChicago].
Warrant Exception: Inventory Searches
When police impound an illegally parked car, they may tow it to a government parking lot. Similarly, police may tow the car of a driver who is arrested for a traffic violation. These are just two of the many ways in which government agents can lawfully take possession of property. Another common scenario arises when police store the effects of a person who is jailed, keeping them until the person is released. The Court has held that government officials may search property that comes into their possession in circumstances such as these, as long as they follow proper procedures.
Supreme Court of the United States
South Dakota v. Donald Opperman
Decided July 6, 1976 – 428 U.S. 364
Mr. Chief Justice BURGER delivered the opinion of the Court.
We review the judgment of the Supreme Court of South Dakota, holding that local police violated the Fourth Amendment to the Federal Constitution, as applicable to the States under the Fourteenth Amendment, when they conducted a routine inventory search of an automobile lawfully impounded by police for violations of municipal parking ordinances.
(1)
Local ordinances prohibit parking in certain areas of downtown Vermillion, S.D., between the hours of 2 a.m. and 6 a.m. During the early morning hours of December 10, 1973, a Vermillion police officer observed respondent’s unoccupied vehicle illegally parked in the restricted zone. At approximately 3 a.m., the officer issued an overtime parking ticket and placed it on the car’s windshield. The citation warned: “Vehicles in violation of any parking ordinance may be towed from the area.”
At approximately 10 o’clock on the same morning, another officer issued a second ticket for an overtime parking violation. These circumstances were routinely reported to police headquarters, and after the vehicle was inspected, the car was towed to the city impound lot.
From outside the car at the impound lot, a police officer observed a watch on the dashboard and other items of personal property located on the back seat and back floorboard. At the officer’s direction, the car door was then unlocked and, using a standard inventory form pursuant to standard police procedures, the officer inventoried the contents of the car, including the contents of the glove compartment which was unlocked. There he found marihuana contained in a plastic bag. All items, including the contraband, were removed to the police department for safekeeping. During the late afternoon of December 10, respondent appeared at the police department to claim his property. The marihuana was retained by police.
Respondent was subsequently arrested on charges of possession of marihuana. His motion to suppress the evidence yielded by the inventory search was denied; he was convicted after a jury trial and sentenced to a fine of \$100 and 14 days’ incarceration in the county jail. On appeal, the Supreme Court of South Dakota reversed the conviction. We granted certiorari and we reverse.
(2)
This Court has traditionally drawn a distinction between automobiles and homes or offices in relation to the Fourth Amendment. Although automobiles are “effects” and thus within the reach of the Fourth Amendment, warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not.
[T]he expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office. In discharging their varied responsibilities for ensuring the public safety, law enforcement officials are necessarily brought into frequent contact with automobiles. Most of this contact is distinctly noncriminal in nature. Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.
In the interests of public safety and as part of what the Court has called “community caretaking functions,” automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.
When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger. The practice has been viewed as essential to respond to incidents of theft or vandalism. In addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned.
(3)
In applying the reasonableness standard adopted by the Framers, this Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents. [Our prior holdings] point the way to the correct resolution of this case.
The Vermillion police were indisputably engaged in a caretaking search of a lawfully impounded automobile. The inventory was conducted only after the car had been impounded for multiple parking violations. The owner, having left his car illegally parked for an extended period, and thus subject to impoundment, was not present to make other arrangements for the safekeeping of his belongings. The inventory itself was prompted by the presence in plain view of a number of valuables inside the car. [T]here is no suggestion [] that this standard procedure, essentially like that followed throughout the country, was a pretext concealing an investigatory police motive.
On this record we conclude that in following standard police procedures, prevailing throughout the country and approved by the overwhelming majority of courts, the conduct of the police was not “unreasonable” under the Fourth Amendment.
The judgment of the South Dakota Supreme Court is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Notes, Comments, and Questions
In Illinois v. Lafayette, 462 U.S. 640 (1983), the Court applied Opperman to a police search of the “purse-type shoulder bag” of “an arrested person [who] arrive[d] at a police station.” Because the search could not be deemed “incident” to the arrest, the Court considered “whether, consistent with the Fourth Amendment, it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police stationhouse incident to booking and jailing the suspect.” The Court found the question fairly straightforward and resolved it as follows:
“At the stationhouse, it is entirely proper for police to remove and list or inventory property found on the person or in the possession of an arrested person who is to be jailed. A range of governmental interests support an inventory process. It is not unheard of for persons employed in police activities to steal property taken from arrested persons; similarly, arrested persons have been known to make false claims regarding what was taken from their possession at the stationhouse. A standardized procedure for making a list or inventory as soon as reasonable after reaching the stationhouse not only deters false claims but also inhibits theft or careless handling of articles taken from the arrested person. Arrested persons have also been known to injure themselves—or others—with belts, knives, drugs or other items on their person while being detained. Dangerous instrumentalities—such as razor blades, bombs, or weapons—can be concealed in innocent-looking articles taken from the arrestee’s possession. The bare recital of these mundane realities justifies reasonable measures by police to limit these risks—either while the items are in police possession or at the time they are returned to the arrestee upon his release.”
Because the Court found such searches to be reasonable regardless of whether officials feared any particular bag possessed by an arrestee, the Court held that neither probable cause or any other form of individualized suspicion was needed for inventory searches of an arrestee’s belongings prior to incarceration, “in accordance with established inventory procedures.”
By contrast, in Florida v. Wells, 495 U.S. 1 (1990), the Court found that because the highway patrol lacked “standardized criteria” or an “established routine” with respect to opening closed containers while inventorying a car, officers violated the Fourth Amendment when opening a locked suitcase found in the trunk of an impounded car. The Court said such criteria were needed because of “the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.” In sum, departments have wide latitude to set inventory policies and to search cars, bags, and other items pursuant to such policies. But without a preexisting policy, searches lose the presumption of reasonableness.
A former student of your authors once told a story about Gant drawn from the student’s experience as a police officer.2 He began by describing how police reacted to the Court’s decision in Gant.
“Post-Gant, law enforcement agencies scurried to train officers on search of automobiles incident to lawful arrest. A tool once frequently and heavily relied on, [SILA] was no longer an option for officers looking to get into vehicles without the availability of the automobile exception outlined in Carroll. This was particularly frustrating on pretext stops where officers would arrest local drug dealers and criminals for driver’s license violations or other mundane crimes to get into vehicles where evidence of the more serious, and sometimes violent, crimes were concealed.”
Police adjusted their tactics: “The response was shoring up vehicle tow, impound, and inventory policies.” In other words, because police could not search nearly as many cars incident to arrest, police increased the number of cars they decided to tow after arrests.
Here is where the story gets exciting: “In 2010, Officers … stopped a vehicle after complaints of careless and imprudent driving. The driver, 20, did not have a driver’s license. Officer attempts to contact the vehicle owner to remove it from the side of the road were unsuccessful. Pursuant to department policy, officers contacted a tow truck and conducted an inventory search where they located the owner of the vehicle, mother of the driver, dead in the trunk.”
As the student summed up, “Sometimes there IS a body in the trunk.”
Warrant Exception: Administrative Searches
Our next warrant exception concerns “administrative searches,” which involve government functions largely (if not entirely) unknown when the Fourth Amendment was ratified. For example, fire code and housing code inspections are important to the safety of densely populated cities. On the other hand, some might question whether inspectors should be allowed to search their homes without a warrant, perhaps even without probable cause.
Supreme Court of the United States
Roland Camara v. Municipal Court of the City and County of San Francisco
Decided June 5, 1967 – 387 U.S. 523
Mr. Justice WHITE delivered the opinion of the Court.
Appellant brought this action in a California Superior Court alleging that he was awaiting trial on a criminal charge of violating the San Francisco Housing Code by refusing to permit a warrantless inspection of his residence, and that a writ of prohibition should issue to the criminal court because the ordinance authorizing such inspections is unconstitutional on its face. The Superior Court denied the writ, the District Court of Appeal affirmed, and the Supreme Court of California denied a petition for hearing. Appellant properly raised and had considered by the California courts the federal constitutional questions he now presents to this Court.
Though there were no judicial findings of fact in this prohibition proceeding, we shall set forth the parties’ factual allegations. On November 6, 1963, an inspector of the Division of Housing Inspection of the San Francisco Department of Public Health entered an apartment building to make a routine annual inspection for possible violations of the city’s Housing Code. The building’s manager informed the inspector that appellant, lessee of the ground floor, was using the rear of his leasehold as a personal residence. Claiming that the building’s occupancy permit did not allow residential use of the ground floor, the inspector confronted appellant and demanded that he permit an inspection of the premises. Appellant refused to allow the inspection because the inspector lacked a search warrant.
The inspector returned on November 8, again without a warrant, and appellant again refused to allow an inspection. A citation was then mailed ordering appellant to appear at the district attorney’s office. When appellant failed to appear, two inspectors returned to his apartment on November 22. They informed appellant that he was required by law to permit an inspection under § 503 of the Housing Code.
Appellant nevertheless refused the inspectors access to his apartment without a search warrant. Thereafter, a complaint was filed charging him with refusing to permit a lawful inspection in violation of § 507 of the Code. Appellant was arrested on December 2 and released on bail. When his demurrer to the criminal complaint was denied, appellant filed this petition for a writ of prohibition.
Appellant has argued throughout this litigation that § 503 is contrary to the Fourth and Fourteenth Amendments in that it authorizes municipal officials to enter a private dwelling without a search warrant and without probable cause to believe that a violation of the Housing Code exists therein. Consequently, appellant contends, he may not be prosecuted under § 507 for refusing to permit an inspection unconstitutionally authorized by § 503. [T]he District Court of Appeal held that § 503 does not violate Fourth Amendment rights because it “is part of a regulatory scheme which is essentially civil rather than criminal in nature, inasmuch as that section creates a right of inspection which is limited in scope and may not be exercised under unreasonable conditions.” [W]e reverse.
I
Though there has been general agreement as to the fundamental purpose of the Fourth Amendment, translation of the abstract prohibition against “unreasonable searches and seizures” into workable guidelines for the decision of particular cases is a difficult task which has for many years divided the members of this Court. Nevertheless, one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is “unreasonable” unless it has been authorized by a valid search warrant.
In Frank v. State of Maryland, [359 U.S. 360 (1959),] this Court upheld the conviction of one who refused to permit a warrantless inspection of private premises for the purposes of locating and abating a suspected public nuisance. Although Frank can arguably be distinguished from this case on its facts, the Frank opinion has generally been interpreted as carving out an additional exception to the rule that warrantless searches are unreasonable under the Fourth Amendment. The District Court of Appeal so interpreted Frank in this case, and that ruling is the core of appellant’s challenge here. We proceed to a re-examination of the factors which persuaded the Frank majority to adopt this construction of the Fourth Amendment’s prohibition against unreasonable searches.
We may agree that a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman’s search for the fruits and instrumentalities of crime. For this reason alone, Frank differed from the great bulk of Fourth Amendment cases which have been considered by this Court. But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely “peripheral.” It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior. [A]s this case demonstrates, refusal to permit an inspection is itself a crime, punishable by fine or even by jail sentence.
[W]e hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. State of Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment’s protections. Because of the nature of the municipal programs under consideration, however, these conclusions must be the beginning, not the end, of our inquiry. The Frank majority gave recognition to the unique character of these inspection programs by refusing to require search warrants; to reject that disposition does not justify ignoring the question whether some other accommodation between public need and individual rights is essential.
II
The Fourth Amendment provides that, “no Warrants shall issue, but upon probable cause.” Borrowing from more typical Fourth Amendment cases, appellant argues not only that code enforcement inspection programs must be circumscribed by a warrant procedure, but also that warrants should issue only when the inspector possesses probable cause to believe that a particular dwelling contains violations of the minimum standards prescribed by the code being enforced. We disagree.
In cases in which the Fourth Amendment requires that a warrant to search be obtained, “probable cause” is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. Unlike the search pursuant to a criminal investigation, the inspection programs at issue here are aimed at securing city-wide compliance with minimum physical standards for private property. The primary governmental interest at stake is to prevent even the unintentional development of conditions which are hazardous to public health and safety. In determining whether a particular inspection is reasonable—and thus in determining whether there is probable cause to issue a warrant for that inspection—the need for the inspection must be weighed in terms of these reasonable goals of code enforcement.
There is unanimous agreement among those most familiar with this field that the only effective way to seek universal compliance with the minimum standards required by municipal codes is through routine periodic inspections of all structures. It is here that the probable cause debate is focused, for the agency’s decision to conduct an area inspection is unavoidably based on its appraisal of conditions in the area as a whole, not on its knowledge of conditions in each particular building.
“Where considerations of health and safety are involved, the facts that would justify an inference of ‘probable cause’ to make an inspection are clearly different from those that would justify such an inference where a criminal investigation has been undertaken. Experience may show the need for periodic inspections of certain facilities without a further showing of cause to believe that substandard conditions dangerous to the public are being maintained. The passage of a certain period without inspection might of itself be sufficient in a given situation to justify the issuance of warrant. The test of ‘probable cause’ required by the Fourth Amendment can take into account the nature of the search that is being sought.”
III
Since our holding emphasizes the controlling standard of reasonableness, nothing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations.
IV
In this case, appellant has been charged with a crime for his refusal to permit housing inspectors to enter his leasehold without a warrant. There was no emergency demanding immediate access; in fact, the inspectors made three trips to the building in an attempt to obtain appellant’s consent to search. Yet no warrant was obtained and thus appellant was unable to verify either the need for or the appropriate limits of the inspection. Assuming the facts to be as the parties have alleged, we therefore conclude that appellant had a constitutional right to insist that the inspectors obtain a warrant to search and that appellant may not constitutionally be convicted for refusing to consent to the inspection. It appears from the opinion of the District Court of Appeal that under these circumstances a writ of prohibition will issue to the criminal court under California law.
The judgment is vacated and the case is remanded for further proceedings not inconsistent with this opinion.
Notes, Comments, and Questions
What are the differences between the general warrant proposed in Camera and the disfavored general warrant? What other types of searches might fall under the “inspection” umbrella?
Consider a city zoning law that restricts who may live in a certain residence on the basis of family status. For example, the city code might state that no more than three unrelated persons may live in a house zoned for “single-family” occupancy.3 In such a house, an adult could live with her four children, but four unrelated roommates could not share the house (even though the four roomates would constitute one fewer total person than the alternative group of occupants). In a neighborhood near a university campus, students might occasionally rent houses (with two or three names on a lease) and use them in a way that violates the code (for example, six students living together). If a neighborhood busybody—concerned with a perceived threat to property values or simply interested in policing how neighbors behave—calls city officials with vague reports of overoccupancy, may a judge issue a warrant allowing city officials to inspect every house in the neighborhood to see who lives there and whether they are related to one another? May such warrants issue every year—allowing searches of houses in “single-family” neighborhoods near campus—even if no one complains?
In See v. City of Seattle, 387 U.S. 541 (1967), decided the same day as Camara, the Court held that the rule of Camara applied to commercial warehouses. “As we explained in Camara, a search of private houses is presumptively unreasonable if conducted without a warrant. The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property.”
Two decades later, however, the Court was less protective of a business owner’s right to avoid warrantless administrative searches. In New York v. Burger, 482 U.S. 691 (1987), the Court considered a different kind of business premises—a junkyard. After stating (somewhat implausibly) that the junkyard was a “closely regulated industry,” the Court held that proprietors of such businesses have lowered expectations of privacy. That finding, combined with the state interest in supervising such industries (in this case, to combat car theft by preventing stolen parts from being bought and sold at junkyards), made the warrantless search reasonable. Students should note that the Burger Court went even further than the Court’s decision in Camara. In Camara, the Court required inspectors to obtain a warrant, which if suspiciously similar to the detested “general warrants” of old was at least issued by a judge. In Burger, the Court held that New York’s statute allowing for the inspection of junkyards was a “constitutionally adequate substitute for a warrant.”
In a dissent joined in full by Justice Marshall and in part by Justice O’Connor, Justice Brennan argued that “Burger’s vehicle-dismantling business is not closely regulated (unless most New York City businesses are).” Objecting to the Court’s acceptance of the New York statute in lieu of a warrant, he argued that “the Court also perceives careful guidance and control of police discretion in a statute that is patently insufficient to eliminate the need for a warrant.” Accordingly, he concluded that the decision “renders virtually meaningless the general rule that a warrant is required for administrative searches of commercial property.”
The Court revisited administrative searches in City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015), deciding by a 5-4 vote that certain regulations of Los Angeles hotels violated the Fourth Amendment. In particular, the city required “hotel operators to record and keep specific information about their guests on the premises for a 90-day period” and to make the records “available to any officer of the Los Angeles Police Department for inspection … at a time and in a manner that minimizes any interference with the operation of the business.” Refusal to make the records available was a crime. Hotel operators brought a facial challenge to the regulation and prevailed.
The majority noted that it did not strike down the provisions of the regulation requiring that the records be kept, nor did it prevent officers from viewing the records by consent or by obtaining a proper administrative warrant (or with some other exception to the warrant requirement). Instead, the Court struck down only the provision forcing hotel owners to show the records on demand to any officer without a warrant, on pain of criminal prosecution—without even the opportunity for a precompliance judicial review. The Court rejected the city’s argument that the regulation was valid under prior precedents related to “closely regulated industries.” Perhaps retreating a bit from the broad definition of such industries in Burger, the Patel Court stated, “Over the past 45 years, the Court has identified only four industries that ‘have such a history of government oversight that no reasonable expectation of privacy … could exist for a proprietor over the stock of such an enterprise.’” Those industries are “liquor sales,” “firearms dealing,” “mining,” and—of course—“running an automobile junkyard.”
In a dissent joined by Chief Justice Roberts and Justice Thomas, Justice Scalia wrote: “[T]he Court today concludes that Los Angeles’s ordinance is ‘unreasonable’ inasmuch as it permits police to flip through a guest register to ensure it is being filled out without first providing an opportunity for the motel operator to seek judicial review. Because I believe that such a limited inspection of a guest register is eminently reasonable under the circumstances presented, I dissent.” He noted “that the motel operators who conspire with drug dealers and procurers may demand precompliance judicial review simply as a pretext to buy time for making fraudulent entries in their guest registers.”
Justice Alito dissented as well, joined by Justice Thomas. Objecting in particular to the Court’s finding that the regulation was facially invalid—as opposed to invalid in limited cases—he presented five examples of circumstances in which he believed it would be reasonable for the city to enforce the law as written. Here is one:
“Example Two. A murderer has kidnapped a woman with the intent to rape and kill her and there is reason to believe he is holed up in a certain motel. The Fourth Amendment’s reasonableness standard accounts for exigent circumstances. When the police arrive, the motel operator folds her arms and says the register is locked in a safe. Invoking [the challenged regulation], the police order the operator to turn over the register. She refuses. The Fourth Amendment does not protect her from arrest.”
* * *
DNA Tests of Arrestees
We conclude with a case challenging a Maryland policy under which police collected DNA from arrestees as part of “routine booking procedure.”
Supreme Court of the United States
Maryland v. Alonzo Jay King
Decided June 3, 2013 – 569 U.S. 435
Justice KENNEDY delivered the opinion of the Court.
In 2003 a man concealing his face and armed with a gun broke into a woman’s home in Salisbury, Maryland. He raped her. The police were unable to identify or apprehend the assailant based on any detailed description or other evidence they then had, but they did obtain from the victim a sample of the perpetrator’s DNA.
In 2009 Alonzo King was arrested in Wicomico County, Maryland, and charged with first- and second-degree assault for menacing a group of people with a shotgun. As part of a routine booking procedure for serious offenses, his DNA sample was taken by applying a cotton swab or filter paper—known as a buccal swab—to the inside of his cheeks. The DNA was found to match the DNA taken from the Salisbury rape victim. King was tried and convicted for the rape. Additional DNA samples were taken from him and used in the rape trial, but there seems to be no doubt that it was the DNA from the cheek sample taken at the time he was booked in 2009 that led to his first having been linked to the rape and charged with its commission.
On July 13, 2009, King’s DNA record was uploaded to the Maryland DNA database, and three weeks later, on August 4, 2009, his DNA profile was matched to the DNA sample collected in the unsolved 2003 rape case. Once the DNA was matched to King, detectives presented the forensic evidence to a grand jury, which indicted him for the rape. Detectives obtained a search warrant and took a second sample of DNA from King, which again matched the evidence from the rape. He moved to suppress the DNA match on the grounds that Maryland’s DNA collection law violated the Fourth Amendment. The Circuit Court Judge upheld the statute as constitutional. King pleaded not guilty to the rape charges but was convicted and sentenced to life in prison without the possibility of parole. The Court of Appeals of Maryland, on review of King’s rape conviction, ruled that the DNA taken when King was booked for the 2009 charge was an unlawful seizure because obtaining and using the cheek swab was an unreasonable search of the person. It set the rape conviction aside. This Court granted certiorari and now reverses the judgment of the Maryland court.
A
The Act authorizes Maryland law enforcement authorities to collect DNA samples from “an individual who is charged with … a crime of violence or an attempt to commit a crime of violence; or … burglary or an attempt to commit burglary.” Maryland law defines a crime of violence to include murder, rape, first-degree assault, kidnaping, arson, sexual assault, and a variety of other serious crimes. Once taken, a DNA sample may not be processed or placed in a database before the individual is arraigned (unless the individual consents). It is at this point that a judicial officer ensures that there is probable cause to detain the arrestee on a qualifying serious offense. If “all qualifying criminal charges are determined to be unsupported by probable cause … the DNA sample shall be immediately destroyed.” DNA samples are also destroyed if “a criminal action begun against the individual … does not result in a conviction,” “the conviction is finally reversed or vacated and no new trial is permitted,” or “the individual is granted an unconditional pardon.”
The Act also limits the information added to a DNA database and how it may be used. Specifically, “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored.” No purpose other than identification is permissible: “A person may not willfully test a DNA sample for information that does not relate to the identification of individuals as specified in this subtitle.” Tests for familial matches are also prohibited. The officers involved in taking and analyzing respondent’s DNA sample complied with the Act in all respects.
Respondent’s DNA was collected in this case using a common procedure known as a “buccal swab.” “Buccal cell collection involves wiping a small piece of filter paper or a cotton swab similar to a Q-tip against the inside cheek of an individual’s mouth to collect some skin cells.” The procedure is quick and painless. The swab touches inside an arrestee’s mouth, but it requires no “surgical intrusio[n] beneath the skin,” and it poses no “threa[t] to the health or safety” of arrestees.
B
Respondent’s identification as the rapist resulted in part through the operation of a national project to standardize collection and storage of DNA profiles. Authorized by Congress and supervised by the Federal Bureau of Investigation, the Combined DNA Index System (CODIS) connects DNA laboratories at the local, state, and national level. All 50 States require the collection of DNA from felony convicts, and respondent does not dispute the validity of that practice. Twenty-eight States and the Federal Government have adopted laws similar to the Maryland Act authorizing the collection of DNA from some or all arrestees. At issue is a standard, expanding technology already in widespread use throughout the Nation.
III
It can be agreed that using a buccal swab on the inner tissues of a person’s cheek in order to obtain DNA samples is a search. Virtually any “intrusio[n] into the human body” will work an invasion of “‘cherished personal security’ that is subject to constitutional scrutiny.” The fact than an intrusion is negligible is of central relevance to determining reasonableness, although it is still a search as the law defines that term.
To say that the Fourth Amendment applies here is the beginning point, not the end of the analysis. “[T]he Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” “As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’” In giving content to the inquiry whether an intrusion is reasonable, the Court has preferred “some quantum of individualized suspicion … [as] a prerequisite to a constitutional search or seizure. But the Fourth Amendment imposes no irreducible requirement of such suspicion.”
The Maryland DNA Collection Act provides that, in order to obtain a DNA sample, all arrestees charged with serious crimes must furnish the sample on a buccal swab applied, as noted, to the inside of the cheeks. The arrestee is already in valid police custody for a serious offense supported by probable cause. The DNA collection is not subject to the judgment of officers whose perspective might be “colored by their primary involvement in ‘the often competitive enterprise of ferreting out crime.’” “[T]here are virtually no facts for a neutral magistrate to evaluate.” Here, the search effected by the buccal swab of respondent falls within the category of cases this Court has analyzed by reference to the proposition that the “touchstone of the Fourth Amendment is reasonableness, not individualized suspicion.”
Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution. Urgent government interests are not a license for indiscriminate police behavior. To say that no warrant is required is merely to acknowledge that “rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.” This application of “traditional standards of reasonableness” requires a court to weigh “the promotion of legitimate governmental interests” against “the degree to which [the search] intrudes upon an individual’s privacy.” An assessment of reasonableness to determine the lawfulness of requiring this class of arrestees to provide a DNA sample is central to the instant case.
A
The legitimate government interest served by the Maryland DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody. It is beyond dispute that “probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.” Also uncontested is the “right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested.” When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests.
First, “[i]n every criminal case, it is known and must be known who has been arrested and who is being tried.” An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment. Identity has never been considered limited to the name on the arrestee’s birth certificate. An “arrestee may be carrying a false ID or lie about his identity,” and “criminal history records … can be inaccurate or incomplete.”
A suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention. Police already seek this crucial identifying information. They use routine and accepted means as varied as comparing the suspect’s booking photograph to sketch artists’ depictions of persons of interest, showing his mugshot to potential witnesses, and of course making a computerized comparison of the arrestee’s fingerprints against electronic databases of known criminals and unsolved crimes. In this respect the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides.
The task of identification necessarily entails searching public and police records based on the identifying information provided by the arrestee to see what is already known about him. A DNA profile is useful to the police because it gives them a form of identification to search the records already in their valid possession. In this respect the use of DNA for identification is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene. Finding occurrences of the arrestee’s CODIS profile in outstanding cases is consistent with this common practice. It uses a different form of identification than a name or fingerprint, but its function is the same.
Second, law enforcement officers bear a responsibility for ensuring that the custody of an arrestee does not create inordinate “risks for facility staff, for the existing detainee population, and for a new detainee.” DNA identification can provide untainted information to those charged with detaining suspects and detaining the property of any felon. For these purposes officers must know the type of person whom they are detaining, and DNA allows them to make critical choices about how to proceed.
Third, looking forward to future stages of criminal prosecution, “the Government has a substantial interest in ensuring that persons accused of crimes are available for trials.” Fourth, an arrestee’s past conduct is essential to an assessment of the danger he poses to the public, and this will inform a court’s determination whether the individual should be released on bail. Knowing that the defendant is wanted for a previous violent crime based on DNA identification is especially probative of the court’s consideration of “the danger of the defendant to the alleged victim, another person, or the community.”
Present capabilities make it possible to complete a DNA identification that provides information essential to determining whether a detained suspect can be released pending trial. The facts of this case are illustrative. Though the record is not clear, if some thought were being given to releasing the respondent on bail on the gun charge, a release that would take weeks or months in any event, when the DNA report linked him to the prior rape, it would be relevant to the conditions of his release. The same would be true with a supplemental fingerprint report.
Finally, in the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense. “[P]rompt [DNA] testing … would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of … innocent people.”
Because proper processing of arrestees is so important and has consequences for every stage of the criminal process, the Court has recognized that the “governmental interests underlying a station-house search of the arrestee’s person and possessions may in some circumstances be even greater than those supporting a search immediately following arrest.”
B
DNA identification represents an important advance in the techniques used by law enforcement to serve legitimate police concerns for as long as there have been arrests. Law enforcement agencies routinely have used scientific advancements in their standard procedures for the identification of arrestees. “Police had been using photography to capture the faces of criminals almost since its invention.” By the time that it had become “the daily practice of the police officers and detectives of crime to use photographic pictures for the discovery and identification of criminals,” the courts likewise had come to the conclusion that “it would be [a] matter of regret to have its use unduly restricted upon any fanciful theory or constitutional privilege.”
Beginning in 1887, some police adopted more exacting means to identify arrestees, using the system of precise physical measurements pioneered by the French anthropologist Alphonse Bertillon. Bertillon identification consisted of 10 measurements of the arrestee’s body, along with a “scientific analysis of the features of the face and an exact anatomical localization of the various scars, marks, &c., of the body.” As in the present case, the point of taking this information about each arrestee was not limited to verifying that the proper name was on the indictment. These procedures were used to “facilitate the recapture of escaped prisoners,” to aid “the investigation of their past records and personal history,” and “to preserve the means of identification for … future supervision after discharge.”
Perhaps the most direct historical analogue to the DNA technology used to identify respondent is the familiar practice of fingerprinting arrestees. From the advent of this technique, courts had no trouble determining that fingerprinting was a natural part of “the administrative steps incident to arrest.” By the middle of the 20th century, it was considered “elementary that a person in lawful custody may be required to submit to photographing and fingerprinting as part of routine identification processes.”
DNA identification is an advanced technique superior to fingerprinting in many ways, so much so that to insist on fingerprints as the norm would make little sense to either the forensic expert or a layperson. The additional intrusion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant, and DNA is a markedly more accurate form of identifying arrestees. A suspect who has changed his facial features to evade photographic identification or even one who has undertaken the more arduous task of altering his fingerprints cannot escape the revealing power of his DNA.
In sum, there can be little reason to question “the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.” To that end, courts have confirmed that the Fourth Amendment allows police to take certain routine “administrative steps incident to arrest—i.e., … book[ing], photograph[ing], and fingerprint[ing].” DNA identification of arrestees, of the type approved by the Maryland statute here at issue, is “no more than an extension of methods of identification long used in dealing with persons under arrest.” In the balance of reasonableness required by the Fourth Amendment, therefore, the Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the unmatched potential of DNA identification to serve that interest.
A
By comparison to this substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is a minimal one.
The reasonableness of any search must be considered in the context of the person’s legitimate expectations of privacy. The expectations of privacy of an individual taken into police custody “necessarily [are] of a diminished scope.” A search of the detainee’s person when he is booked into custody may “‘involve a relatively extensive exploration,’” including “requir[ing] at least some detainees to lift their genitals or cough in a squatting position.”
In this critical respect, the search here at issue differs from the sort of programmatic searches of either the public at large or a particular class of regulated but otherwise law-abiding citizens that the Court has previously labeled as “‘special needs’” searches. Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial [] his or her expectations of privacy and freedom from police scrutiny are reduced. DNA identification like that at issue here thus does not require consideration of any unique needs that would be required to justify searching the average citizen.
The reasonableness inquiry here considers two other circumstances in which the Court has held that particularized suspicion is not categorically required: “diminished expectations of privacy [and] minimal intrusions.” This is not to suggest that any search is acceptable solely because a person is in custody. Some searches, such as invasive surgery or a search of the arrestee’s home, involve either greater intrusions or higher expectations of privacy than are present in this case. A brief intrusion of an arrestee’s person is subject to the Fourth Amendment, but a swab of this nature does not increase the indignity already attendant to normal incidents of arrest.
B
In addition the processing of respondent’s DNA sample’s 13 CODIS loci did not intrude on respondent’s privacy in a way that would make his DNA identification unconstitutional. In light of the scientific and statutory safeguards, once respondent’s DNA was lawfully collected the STR analysis of respondent’s DNA pursuant to CODIS procedures did not amount to a significant invasion of privacy that would render the DNA identification impermissible under the Fourth Amendment.
In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.
The judgment of the Court of Appeals of Maryland is reversed.
Justice SCALIA, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN join, dissenting.
The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.
It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. [T]he Court elaborates at length the ways that the search here served the special purpose of “identifying” King. But that seems to me quite wrong—unless what one means by “identifying” someone is “searching for evidence that he has committed crimes unrelated to the crime of his arrest.”
[I]f anything was “identified” at the moment that the DNA database returned a match, it was not King—his identity was already known. (The docket for the original criminal charges lists his full name, his race, his sex, his height, his weight, his date of birth, and his address.) Rather, what the August 4 match “identified” was the previously-taken sample from the earlier crime. That sample was genuinely mysterious to Maryland. King was not identified by his association with the sample; rather, the sample was identified by its association with King. The Court effectively destroys its own “identification” theory when it acknowledges that the object of this search was “to see what [was] already known about [King].” No minimally competent speaker of English would say, upon noticing a known arrestee’s similarity “to a wanted poster of a previously unidentified suspect,” that the arrestee had thereby been identified. It was the previously unidentified suspect who had been identified—just as, here, it was the previously unidentified rapist.
That taking DNA samples from arrestees has nothing to do with identifying them is confirmed not just by actual practice (which the Court ignores) but by the enabling statute itself (which the Court also ignores). The Maryland Act at issue has a section helpfully entitled “Purpose of collecting and testing DNA samples.” (One would expect such a section to play a somewhat larger role in the Court’s analysis of the Act’s purpose—which is to say, at least some role.) That provision lists five purposes for which DNA samples may be tested. By this point, it will not surprise the reader to learn that the Court’s imagined purpose is not among them.
So, to review: DNA testing does not even begin until after arraignment and bail decisions are already made. The samples sit in storage for months, and take weeks to test. When they are tested, they are checked against the Unsolved Crimes Collection—rather than the Convict and Arrestee Collection, which could be used to identify them. The Act forbids the Court’s purpose (identification), but prescribes as its purpose what our suspicionless-search cases forbid (“official investigation into a crime”). Against all of that, it is safe to say that if the Court’s identification theory is not wrong, there is no such thing as error.
I therefore dissent, and hope that today’s incursion upon the Fourth Amendment [] will some day be repudiated.
Notes, Comments, and Questions
The dissent points out that the police did not really use the DNA to identify King; they used it to identify the source of sample obtained elsewhere; that is, they used the DNA test of King to match him to the pre-existing sample. In recent years, police have used DNA evidence to create profiles and search for family matches in ancestry DNA databases. What outcome under the Fourth Amendment?
Imagine a small community where two children are murdered. Police believe they have a serial killer and obtain a confession for one of the murders from a local boy with developmental disabilities. DNA evidence proves the two victims had the same killer, but the evidence also exonerates the boy. The police want to obtain DNA samples from every male resident in the small town to find the murderer. What outcome under the Fourth Amendment? What if the police convince the entire male population to consent to giving DNA evidence; one man has a friend give DNA evidence on his behalf. Then later the friend comes forward to confess the subterfuge. Analyze whether the police can require a DNA test from the man who sent the friend in his place. (Note: This question is based on a real case from England, in which Colin Pitchfork was eventually proven to have murdered two victims: Lynda Mann and Dawn Ashworth.)
This marks the end of our review of exceptions to the warrant requirement, as well as of searches more generally. While questions about unlawful searches will arise again during the semester—for example, when we consider what remedies are appropriate for different kinds of constitutional violations—we are now ready to shift our view to seizures and arrests, to which we will devote our next few chapters.
After that, the remainder of the course materials will focus on rights enumerated in the Fifth, Sixth, and Fourteenth Amendments, with the regulation of interrogations receiving particular attention. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.17%3A_Chapter_18_The_Warrant_Requirement_-_Exceptions.txt |
In this chapter, we consider the Court’s definition of “seizure” for Fourth Amendment purposes. The common meaning of “seizure”—to take possession of a thing or person by force or by legal process—provides some insight to the term’s meaning in constitutional law. But as is true for other terms of art, such as “search,” the dictionary definition is not identical to the doctrinal meaning. We also consider when police may conduct arrests.
What Is a Seizure?
Just as something cannot be an “unreasonable search” without being a “search,” something cannot be an “unreasonable seizure” without being a “seizure.” Arrests are easily deemed “seizures” of the persons arrested. A variety of less invasive police tactics, however, have required more subtle analysis.
Supreme Court of the United States
United States v. Sylvia L. Mendenhall
Decided May 27, 1980 – 446 U.S. 544
Mr. Justice STEWART announced the judgment of the Court and delivered an opinion, in which Mr. Justice REHNQUIST joined.1
The respondent was brought to trial in the United States District Court for the Eastern District of Michigan on a charge of possessing heroin with intent to distribute it. She moved to suppress the introduction at trial of the heroin as evidence against her on the ground that it had been acquired from her through an unconstitutional search and seizure by agents of the Drug Enforcement Administration (DEA). The District Court denied the respondent’s motion, and she was convicted after a trial upon stipulated facts. The Court of Appeals reversed. We granted certiorari.
I
At the hearing in the trial court on the respondent’s motion to suppress, it was established how the heroin she was charged with possessing had been obtained from her. The respondent arrived at the Detroit Metropolitan Airport on a commercial airline flight from Los Angeles early in the morning on February 10, 1976. As she disembarked from the airplane, she was observed by two agents of the DEA, who were present at the airport for the purpose of detecting unlawful traffic in narcotics. After observing the respondent’s conduct, which appeared to the agents to be characteristic of persons unlawfully carrying narcotics, the agents approached her as she was walking through the concourse, identified themselves as federal agents, and asked to see her identification and airline ticket. The respondent produced her driver’s license, which was in the name of Sylvia Mendenhall, and, in answer to a question of one of the agents, stated that she resided at the address appearing on the license. The airline ticket was issued in the name of “Annette Ford.” When asked why the ticket bore a name different from her own, the respondent stated that she “just felt like using that name.” In response to a further question, the respondent indicated that she had been in California only two days. Agent Anderson then specifically identified himself as a federal narcotics agent and, according to his testimony, the respondent “became quite shaken, extremely nervous. She had a hard time speaking.”
After returning the airline ticket and driver’s license to her, Agent Anderson asked the respondent if she would accompany him to the airport DEA office for further questions. She did so, although the record does not indicate a verbal response to the request. The office, which was located up one flight of stairs about 50 feet from where the respondent had first been approached, consisted of a reception area adjoined by three other rooms. At the office the agent asked the respondent if she would allow a search of her person and handbag and told her that she had the right to decline the search if she desired. She responded: “Go ahead.” She then handed Agent Anderson her purse, which contained a receipt for an airline ticket that had been issued to “F. Bush” three days earlier for a flight from Pittsburgh through Chicago to Los Angeles. The agent asked whether this was the ticket that she had used for her flight to California, and the respondent stated that it was.
A female police officer then arrived to conduct the search of the respondent’s person. She asked the agents if the respondent had consented to be searched. The agents said that she had, and the respondent followed the policewoman into a private room. There the policewoman again asked the respondent if she consented to the search, and the respondent replied that she did. The policewoman explained that the search would require that the respondent remove her clothing. The respondent stated that she had a plane to catch and was assured by the policewoman that if she were carrying no narcotics, there would be no problem. The respondent then began to disrobe without further comment. As the respondent removed her clothing, she took from her undergarments two small packages, one of which appeared to contain heroin, and handed both to the policewoman. The agents then arrested the respondent for possessing heroin.
II
Here the Government concedes that its agents had neither a warrant nor probable cause to believe that the respondent was carrying narcotics when the agents conducted a search of the respondent’s person. It is the Government’s position, however, that the search was conducted pursuant to the respondent’s consent, and thus was excepted from the requirements of both a warrant and probable cause. Evidently, the Court of Appeals concluded that the respondent’s apparent consent to the search was in fact not voluntarily given and was in any event the product of earlier official conduct violative of the Fourth Amendment. We must first consider, therefore, whether such conduct occurred, either on the concourse or in the DEA office at the airport.
A2
[I]f the respondent was “seized” when the DEA agents approached her on the concourse and asked questions of her, the agents’ conduct in doing so was constitutional only if they reasonably suspected the respondent of wrongdoing. But “[o]bviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”
We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.
On the facts of this case, no “seizure” of the respondent occurred. The events took place in the public concourse. The agents wore no uniforms and displayed no weapons. They did not summon the respondent to their presence, but instead approached her and identified themselves as federal agents. They requested, but did not demand to see the respondent’s identification and ticket. Such conduct without more, did not amount to an intrusion upon any constitutionally protected interest. The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions. Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official. In short, nothing in the record suggests that the respondent had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way, and for that reason we conclude that the agents’ initial approach to her was not a seizure.
Our conclusion that no seizure occurred is not affected by the fact that the respondent was not expressly told by the agents that she was free to decline to cooperate with their inquiry, for the voluntariness of her responses does not depend upon her having been so informed. We also reject the argument that the only inference to be drawn from the fact that the respondent acted in a manner so contrary to her self-interest is that she was compelled to answer the agents’ questions. It may happen that a person makes statements to law enforcement officials that he later regrets, but the issue in such cases is not whether the statement was self-protective, but rather whether it was made voluntarily.
B
Although we have concluded that the initial encounter between the DEA agents and the respondent on the concourse at the Detroit Airport did not constitute an unlawful seizure, it is still arguable that the respondent’s Fourth Amendment protections were violated when she went from the concourse to the DEA office. Such a violation might in turn infect the subsequent search of the respondent’s person.
The question whether the respondent’s consent to accompany the agents was in fact voluntary or was the product of duress or coercion, express or implied, is to be determined by the totality of all the circumstances and is a matter which the Government has the burden of proving. The respondent herself did not testify at the hearing. The Government’s evidence showed that the respondent was not told that she had to go to the office, but was simply asked if she would accompany the officers. There were neither threats nor any show of force. The respondent had been questioned only briefly, and her ticket and identification were returned to her before she was asked to accompany the officers.
On the other hand, it is argued that the incident would reasonably have appeared coercive to the respondent, who was 22 years old and had not been graduated from high school. It is additionally suggested that the respondent, a female and [Black], may have felt unusually threatened by the officers, who were white males. While these factors were not irrelevant, neither were they decisive, and the totality of the evidence in this case was plainly adequate to support the District Court’s finding that the respondent voluntarily consented to accompany the officers to the DEA office.
III
We conclude that the District Court’s determination that the respondent consented to the search of her person “freely and voluntarily” was sustained by the evidence and that the Court of Appeals was, therefore, in error in setting it aside. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings.
[In a concurrence joined by Chief Justice Burger and Justice Blackmun, Justice Powell wrote that the Court should not decide whether the agents “seized” Mendenhall because the courts below had not considered it. Further, he argued that if the encounter did constitute a seizure, it was justified because the circumstances provided “reasonable suspicion.”]
Mr. Justice WHITE, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice STEVENS join, dissenting.
The Court today concludes that agents of the Drug Enforcement Administration (DEA) acted lawfully in stopping a traveler changing planes in an airport terminal and escorting her to a DEA office for a strip-search of her person. This result is particularly curious because a majority of the Members of the Court refuse to reject the conclusion that Ms. Mendenhall was “seized,” while a separate majority decline to hold that there were reasonable grounds to justify a seizure. Mr. Justice STEWART concludes that the DEA agents acted lawfully, regardless of whether there were any reasonable grounds for suspecting Ms. Mendenhall of criminal activity, because he finds that Ms. Mendenhall was not “seized” by the DEA agents, even though throughout the proceedings below the Government never questioned the fact that a seizure had occurred necessitating a showing of antecedent reasonable suspicion. Mr. Justice POWELL’s opinion concludes that even though Ms. Mendenhall may have been “seized,” the seizure was lawful because her behavior while changing planes in the airport provided reasonable suspicion that she was engaging in criminal activity. The Court then concludes, based on the absence of evidence that Ms. Mendenhall resisted her detention, that she voluntarily consented to being taken to the DEA office, even though she in fact had no choice in the matter. This conclusion is inconsistent with our recognition that consent cannot be presumed from a showing of acquiescence to authority.
Whatever doubt there may be concerning whether Ms. Mendenhall’s Fourth Amendment interests were implicated during the initial stages of her confrontation with the DEA agents, she undoubtedly was “seized” within the meaning of the Fourth Amendment when the agents escorted her from the public area of the terminal to the DEA office for questioning and a strip-search of her person. [T]he nature of the intrusion to which Ms. Mendenhall was subjected when she was escorted by DEA agents to their office and detained there for questioning and a strip-search was so great that it “was in important respects indistinguishable from a traditional arrest.” Although Ms. Mendenhall was not told that she was under arrest, she in fact was not free to refuse to go to the DEA office and was not told that she was. Furthermore, once inside the office, Ms. Mendenhall would not have been permitted to leave without submitting to a strip-search.3
The Court recognizes that the Government has the burden of proving that Ms. Mendenhall consented to accompany the officers, but it nevertheless holds that the “totality of evidence was plainly adequate” to support a finding of consent. On the record before us, the Court’s conclusion can only be based on the notion that consent can be assumed from the absence of proof that a suspect resisted police authority.
Since the defendant was not present to testify at the suppression hearing, we can only speculate about her state of mind as her encounter with the DEA agents progressed from surveillance, to detention, to questioning, to seclusion in a private office, to the female officer’s command to remove her clothing. Nevertheless, it is unbelievable that this sequence of events involved no invasion of a citizen’s constitutionally protected interest in privacy. The rule of law requires a different conclusion.
Notes, Comments, and Questions
The Court in Mendenhall stated that a person is seized if “a reasonable person [in his situation] would have believed that he was not free to leave.” As a result, lawyers and others have recommended that if someone is approached by police and wishes either to avoid or to end the encounter, a useful tactic is to ask, “Am I free to leave?” If the answer is “yes,” then the person may leave without further discussion. If the answer is “no,” then the person should stay—a reasonable person in the situation would not feel free to go. A person told “no” can later challenge the interaction as an unlawful seizure. At a minimum the encounter should be considered a “seizure;” the debate will be about its legality. (An equivalent tactic is to ask, “Am I being detained?” An answer of “no” indicates permission to leave. “Yes” indicates a seizure.)
Consider the following scenario:
Police approach a suspect (who had recently parked his car) and ask to speak to him. The suspect agrees. The officer asks for identification, and the suspect produces a driver’s license. Before returning the license, the officer asks for and receives permission to search the suspect’s vehicle. Is that search the product of valid consent given by a suspect who had not been “seized” during the encounter? Or, instead, did the officer detain the suspect by retaining his driver’s license, thereby creating a situation in which a reasonable person would not feel free to leave? See United States v. De La Rosa, 922 F.2d 675, 678 (11th Cir. 1991); id. at 680-81 (Clark, J., dissenting on this question).4
Now imagine a slightly different scenario: Police lawfully stop a car and ask the driver for his license, which is provided. Before returning the license, officers ask for permission to search the car. Is this scenario different from the prior one in any material way? See United States v. Thompson, 712 F.2d 1356, 1360-61 (11th Cir. 1983).
The next case concerns a young suspect especially interested in avoiding an encounter with police. The question is whether police efforts to stop him qualified as a “seizure.”
Supreme Court of the United States
California v. Hodari D.
Decided April 23, 1991 – 499 U.S. 621
Justice SCALIA delivered the opinion of the Court.
Late one evening in April 1988, Officers Brian McColgin and Jerry Pertoso were on patrol in a high-crime area of Oakland, California. They were dressed in street clothes but wearing jackets with “Police” embossed on both front and back. Their unmarked car proceeded west on Foothill Boulevard, and turned south onto 63rd Avenue. As they rounded the corner, they saw four or five youths huddled around a small red car parked at the curb. When the youths saw the officers’ car approaching they apparently panicked, and took flight. The respondent here, Hodari D., and one companion ran west through an alley; the others fled south. The red car also headed south, at a high rate of speed.
The officers were suspicious and gave chase. McColgin remained in the car and continued south on 63rd Avenue; Pertoso left the car, ran back north along 63rd, then west on Foothill Boulevard, and turned south on 62nd Avenue. Hodari, meanwhile, emerged from the alley onto 62nd and ran north. Looking behind as he ran, he did not turn and see Pertoso until the officer was almost upon him, whereupon he tossed away what appeared to be a small rock. A moment later, Pertoso tackled Hodari, handcuffed him, and radioed for assistance. Hodari was found to be carrying \$130 in cash and a pager; and the rock he had discarded was found to be crack cocaine.
In the juvenile proceeding brought against him, Hodari moved to suppress the evidence relating to the cocaine. The court denied the motion without opinion. The California Court of Appeal reversed. The California Supreme Court denied the State’s application for review. We granted certiorari.
As this case comes to us, the only issue presented is whether, at the time he dropped the drugs, Hodari had been “seized” within the meaning of the Fourth Amendment.5 If so, respondent argues, the drugs were the fruit of that seizure and the evidence concerning them was properly excluded. If not, the drugs were abandoned by Hodari and lawfully recovered by the police, and the evidence should have been admitted.
We have long understood that the Fourth Amendment’s protection against “unreasonable … seizures” includes seizure of the person. From the time of the founding to the present, the word “seizure” has meant a “taking possession.” For most purposes at common law, the word connoted not merely grasping, or applying physical force to, the animate or inanimate object in question, but actually bringing it within physical control. A ship still fleeing, even though under attack, would not be considered to have been seized as a war prize. To constitute an arrest, however—the quintessential “seizure of the person” under our Fourth Amendment jurisprudence—the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee, was sufficient.6
To say that an arrest is effected by the slightest application of physical force, despite the arrestee’s escape, is not to say that for Fourth Amendment purposes there is a continuing arrest during the period of fugitivity. If, for example, Pertoso had laid his hands upon Hodari to arrest him, but Hodari had broken away and had then cast away the cocaine, it would hardly be realistic to say that that disclosure had been made during the course of an arrest. The present case, however, is even one step further removed. It does not involve the application of any physical force; Hodari was untouched by Officer Pertoso at the time he discarded the cocaine. His defense relies instead upon the proposition that a seizure occurs “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Hodari contends (and we accept as true for purposes of this decision) that Pertoso’s pursuit qualified as a “show of authority” calling upon Hodari to halt. The narrow question before us is whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield. We hold that it does not.
The language of the Fourth Amendment, of course, cannot sustain respondent’s contention. The word “seizure” readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. It does not remotely apply, however, to the prospect of a policeman yelling “Stop, in the name of the law!” at a fleeing form that continues to flee. That is no seizure. Nor can the result respondent wishes to achieve be produced—indirectly, as it were—by suggesting that Pertoso’s uncomplied-with show of authority was a common-law arrest, and then appealing to the principle that all common-law arrests are seizures. An arrest requires either physical force or, where that is absent, submission to the assertion of authority.
We do not think it desirable, even as a policy matter, to stretch the Fourth Amendment beyond its words and beyond the meaning of arrest, as respondent urges. Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be encouraged. Only a few of those orders, we must presume, will be without adequate basis, and since the addressee has no ready means of identifying the deficient ones it almost invariably is the responsible course to comply. Unlawful orders will not be deterred, moreover, by sanctioning through the exclusionary rule those of them that are not obeyed. Since policemen do not command “Stop!” expecting to be ignored, or give chase hoping to be outrun, it fully suffices to apply the deterrent to their genuine, successful seizures.
In sum, assuming that Pertoso’s pursuit in the present case constituted a “show of authority” enjoining Hodari to halt, since Hodari did not comply with that injunction he was not seized until he was tackled. The cocaine abandoned while he was running was in this case not the fruit of a seizure, and his motion to exclude evidence of it was properly denied. We reverse the decision of the California Court of Appeal, and remand for further proceedings not inconsistent with this opinion.
Justice STEVENS, with whom Justice MARSHALL joins, dissenting.
The Court’s narrow construction of the word “seizure” represents a significant, and in my view, unfortunate, departure from prior case law construing the Fourth Amendment. [T]he Court now adopts a definition of “seizure” that is unfaithful to a long line of Fourth Amendment cases. Even if the Court were defining seizure for the first time, which it is not, the definition that it chooses today is profoundly unwise. In its decision, the Court assumes, without acknowledging, that a police officer may now fire his weapon at an innocent citizen and not implicate the Fourth Amendment—as long as he misses his target.
Because the facts of this case are somewhat unusual, it is appropriate to note that the same issue would arise if the show of force took the form of a command to “freeze,” a warning shot, or the sound of sirens accompanied by a patrol car’s flashing lights. In any of these situations, there may be a significant time interval between the initiation of the officer’s show of force and the complete submission by the citizen. At least on the facts of this case, the Court concludes that the timing of the seizure is governed by the citizen’s reaction, rather than by the officer’s conduct. One consequence of this conclusion is that the point at which the interaction between citizen and police officer becomes a seizure occurs, not when a reasonable citizen believes he or she is no longer free to go, but, rather, only after the officer exercises control over the citizen.
It is too early to know the consequences of the Court’s holding. If carried to its logical conclusion, it will encourage unlawful displays of force that will frighten countless innocent citizens into surrendering whatever privacy rights they may still have.
I respectfully dissent.
Notes, Comments, and Questions
Justice Scalia noted in a footnote that “California conceded below” that police did not have reasonable suspicion to seize Hodari and, citing Scripture, stated that the Court would not decide whether a stop would have been lawful. The dissent found the majority’s musings on the question annoying:
“The Court’s gratuitous quotation from Proverbs 28:1 mistakenly assumes that innocent residents have no reason to fear the sudden approach of strangers. We have previously considered, and rejected, this ivory-towered analysis of the real world for it fails to describe the experience of many residents, particularly if they are members of a minority. See generally Johnson, Race and the Decision To Detain a Suspect, 93 Yale L.J. 214 (1983). It has long been ‘a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that ‘the wicked flee when no man pursueth, but the righteous are as bold as a lion.’ Alberty v. United States, 162 U.S. 499 (1896).”
We will reconsider the legal significance of flight from police when reading cases in which the Court confronted the merits.
The Court in Hodari D. decided that an attempted seizure by police—ordering “stop” at a suspect who ignores the command and runs—is not a “seizure” for purposes of the Fourth Amendment to the Constitution of the United States. The Court did not, however, decide how state law might regulate such police action. In New York, state courts have rejected the reasoning of Hodari D. when interpreting the state constitution. See People v. Martinez, 606 N.E.2d 951 (N.Y. 1992); People v. Hill, 150 A.D.3d 627, 634 & n.4 (N.Y. App. Div. 1st Dep’t 2017) (“In contrast [to New York law], the United States Supreme Court rejected mere police pursuit as constituting a seizure in California v. Hodari D.”). Students need not investigate the idiosyncrasies of New York search and seizure law, much less of all the states. Instead, New York’s rejection of Hodari D. is noted as an example of a larger principle: Under our federal system, states may not offer less protection than the Court declares to be provided by the federal constitution. But states may, if they wish, offer more protection. The Court’s decisions about federal constitutional law thereby provide a floor—not a ceiling—for the protection of individual liberties. Would-be reformers of the law may find greater success in the state courts and state legislatures than in the filing of petitions for certiorari.
Arrests
In previous chapters, we have seen that police are often allowed to conduct warrantless arrests as long as they have probable cause to believe the arrestee has committed a crime. The leading Supreme Court case affirming this principle is United States v. Watson, 423 U.S. 411 (1976).
The Watson Court summarized the facts as follows:
“The relevant events began on August 17, 1972, when an informant, one Khoury, telephoned a postal inspector informing him that respondent Watson was in possession of a stolen credit card and had asked Khoury to cooperate in using the card to their mutual advantage. On five to 10 previous occasions Khoury had provided the inspector with reliable information on postal inspection matters, some involving Watson. Later that day Khoury delivered the card to the inspector. On learning that Watson had agreed to furnish additional cards, the inspector asked Khoury to arrange to meet with Watson. Khoury did so, a meeting being scheduled for August 22. Watson canceled that engagement, but at noon on August 23, Khoury met with Watson at a restaurant designated by the latter. Khoury had been instructed that if Watson had additional stolen credit cards, Khoury was to give a designated signal. The signal was given, the officers closed in, and Watson was forthwith arrested.”
After his arrest, Watson consented to a search of his car that revealed incriminating evidence. He later moved to suppress the evidence on the ground that his consent was obtained after an unlawful arrest. The Court considered the arrest as follows:
“Contrary to the Court of Appeals’ view, Watson’s arrest was not invalid because executed without a warrant. Title 18 U.S.C. § 3061(a)(3) expressly empowers the Board of Governors of the Postal Service to authorize Postal Service officers and employees ‘performing duties related to the inspection of postal matters’ to ‘make arrests without warrant for felonies cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such a felony.’ [T]he inspector and his subordinates, in arresting Watson, were acting strictly in accordance with the governing statute and regulations. The effect of the judgment of the Court of Appeals was to invalidate the statute as applied in this case and as applied to all the situations where a court fails to find exigent circumstances justifying a warrantless arrest. We reverse that judgment.”
“Section 3061 represents a judgment by Congress that it is not unreasonable under the Fourth Amendment for postal inspectors to arrest without a warrant provided they have probable cause to do so. This was not an isolated or quixotic judgment of the legislative branch. Other federal law enforcement officers have been expressly authorized by statute for many years to make felony arrests on probable cause but without a warrant. This is true of United States marshals, and of agents of the Federal Bureau of Investigation, the Drug Enforcement Administration, the Secret Service, and the Customs Service.”
“[T]here is nothing in the Court’s prior cases indicating that under the Fourth Amendment a warrant is required to make a valid arrest for a felony. Indeed, the relevant prior decisions are uniformly to the contrary.”
“The cases construing the Fourth Amendment [] reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest.”
In a concurrence, Justice Powell noted the “anomaly” created by decisions requiring warrants for searches absent exceptional circumstances—even when police have probable cause—and the decision in Watson allowing warrantless arrests based upon probable cause. He wrote, “Logic therefore would seem to dictate that arrests be subject to the warrant requirement at least to the same extent as searches.” But he nonetheless joined the majority because of “history and experience.” He explained as follows:
“The Court’s opinion emphasizes the historical sanction accorded warrantless felony arrests. In the early days of the common law most felony arrests were made upon personal knowledge and without warrants. So established were such arrests as the usual practice that Lord Coke seriously questioned whether a justice of the peace, receiving his information secondhand instead of from personal knowledge, even could authorize an arrest by warrant. By the late 18th century it had been firmly established by Blackstone, with an intervening assist from Sir Matthew Hale, that magistrates could issue arrest warrants upon information supplied by others. But recognition of the warrant power cast no doubt upon the validity of warrantless felony arrests, which continued to be practiced and upheld as before. There is no historical evidence that the Framers or proponents of the Fourth Amendment, outspokenly opposed to the infamous general warrants and writs of assistance, were at all concerned about warrantless arrests by local constables and other peace officers.”
“The historical momentum for acceptance of warrantless arrests, already strong at the adoption of the Fourth Amendment, has gained strength during the ensuing two centuries. Both the judiciary and the legislative bodies of this Nation repeatedly have placed their imprimaturs upon the practice and, as the Government emphasizes, law enforcement agencies have developed their investigative and arrest procedures upon an assumption that warrantless arrests were valid so long as based upon probable cause.”
Note that Justice Powell’s concurrence in Watson referred to “warrantless felony arrests,” and the majority referred to “the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence.” What about warrantless arrests for misdemeanors not committed in the officer’s presence, about which the officer has probable cause to believe suspects have committed? For example, if a shopkeeper describes a suspect in detail and reports seeing him steal a candy bar, police would likely have probable cause to arrest the suspect for larceny, and in many jurisdictions such minor theft would be a misdemeanor. May the officer arrest the suspect without a warrant? Common law generally did not allow such arrests, but states now have statutes allowing them (some for all misdemeanors, others only for certain misdemeanors). Although the Supreme Court has not decided the question, the answer appears to be that if states wish to, they may authorize their police to conduct such arrests. See, e.g., William A. Schroeder, Warrantless Misdemeanor Arrests and the Fourth Amendment, 58 Mo. L. Rev. 771, 811–17 (1993); State v. Walker, 138 P.3d 113, 120 (Wash. 2006) (“every federal circuit court that has addressed the issue has found the Fourth Amendment does not require the misdemeanor to occur in the officer’s presence in order for a warrantless arrest to be valid”).
In the next case, the Court considered an officer who used the authority granted under United States v. Watson—which allows warrantless arrests—in an arguably unreasonable manner. The question was not whether the Justices approved of the challenged police behavior; they did not. Instead, the Court decided whether warrantless arrests for certain minor criminal offenses are “unreasonable” under the Fourth Amendment.
Supreme Court of the United States
Gail Atwater v. City of Lago Vista
Decided April 24, 2001 – 532 U.S. 318
Justice SOUTER delivered the opinion of the Court.
The question is whether the Fourth Amendment forbids a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. We hold that it does not.
A
In Texas, if a car is equipped with safety belts, a front-seat passenger must wear one, and the driver must secure any small child riding in front. Violation of either provision is “a misdemeanor punishable by a fine not less than \$25 or more than \$50.” Texas law expressly authorizes “[a]ny peace officer [to] arrest without warrant a person found committing a violation” of these seatbelt laws, although it permits police to issue citations in lieu of arrest.
In March 1997, petitioner Gail Atwater was driving her pickup truck in Lago Vista, Texas, with her 3-year-old son and 5-year-old daughter in the front seat. None of them was wearing a seatbelt. Respondent Bart Turek, a Lago Vista police officer at the time, observed the seatbelt violations and pulled Atwater over. According to Atwater’s complaint (the allegations of which we assume to be true for present purposes), Turek approached the truck and “yell[ed]” something to the effect of “[w]e’ve met before” and “[y]ou’re going to jail.” He then called for backup and asked to see Atwater’s driver’s license and insurance documentation, which state law required her to carry. When Atwater told Turek that she did not have the papers because her purse had been stolen the day before, Turek said that he had “heard that story two-hundred times.”
Atwater asked to take her “frightened, upset, and crying” children to a friend’s house nearby, but Turek told her, “[y]ou’re not going anywhere.” As it turned out, Atwater’s friend learned what was going on and soon arrived to take charge of the children. Turek then handcuffed Atwater, placed her in his squad car, and drove her to the local police station, where booking officers had her remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took Atwater’s “mug shot” and placed her, alone, in a jail cell for about one hour, after which she was taken before a magistrate and released on \$310 bond.
Atwater was charged with driving without her seatbelt fastened, failing to secure her children in seatbelts, driving without a license, and failing to provide proof of insurance. She ultimately pleaded no contest to the misdemeanor seatbelt offenses and paid a \$50 fine; the other charges were dismissed.
B
Atwater and her husband, petitioner Michael Haas, filed suit in a Texas state court against Turek and respondents City of Lago Vista and Chief of Police Frank Miller. So far as concerns us, petitioners (whom we will simply call Atwater) alleged that respondents (for simplicity, the City) had violated Atwater’s Fourth Amendment “right to be free from unreasonable seizure” and sought compensatory and punitive damages.
The City removed the suit to the United States District Court for the Western District of Texas. [T]he District Court ruled the Fourth Amendment claim “meritless” and granted the City’s summary judgment motion. A panel of the United States Court of Appeals for the Fifth Circuit reversed. Sitting en banc, the Court of Appeals vacated the panel’s decision and affirmed the District Court’s summary judgment for the City. We granted certiorari to consider whether the Fourth Amendment, either by incorporating common-law restrictions on misdemeanor arrests or otherwise, limits police officers’ authority to arrest without warrant for minor criminal offenses. We now affirm.
II
Atwater’s specific contention is that “founding-era common-law rules” forbade peace officers to make warrantless misdemeanor arrests except in cases of “breach of the peace,” a category she claims was then understood narrowly as covering only those nonfelony offenses “involving or tending toward violence.” Although her historical argument is by no means insubstantial, it ultimately fails.
A
[The Court engaged in a lengthy analysis of English legal history.] Having reviewed the relevant English decisions, as well as English and colonial American legal treatises, legal dictionaries, and procedure manuals, we simply are not convinced that Atwater’s is the correct, or even necessarily the better, reading of the common-law history.
B
An examination of specifically American evidence is to the same effect. Neither the history of the framing era nor subsequent legal development indicates that the Fourth Amendment was originally understood, or has traditionally been read, to embrace Atwater’s position.
What we have here, then, is just the opposite of what we had in Wilson v. Arkansas [514 U.S. 927 (1995) (Chapter 7)]. There, we emphasized that during the founding era a number of States had “enacted statutes specifically embracing” the common-law knock-and-announce rule; here, by contrast, those very same States passed laws extending warrantless arrest authority to a host of nonviolent misdemeanors, and in so doing acted very much inconsistently with Atwater’s claims about the Fourth Amendment’s object. We simply cannot conclude that the Fourth Amendment, as originally understood, forbade peace officers to arrest without a warrant for misdemeanors not amounting to or involving breach of the peace.
Nor does Atwater’s argument from tradition pick up any steam from the historical record as it has unfolded since the framing, there being no indication that her claimed rule has ever become “woven … into the fabric” of American law. The story, on the contrary, is of two centuries of uninterrupted (and largely unchallenged) state and federal practice permitting warrantless arrests for misdemeanors not amounting to or involving breach of the peace.
Small wonder, then, that today statutes in all 50 States and the District of Columbia permit warrantless misdemeanor arrests by at least some (if not all) peace officers without requiring any breach of the peace, as do a host of congressional enactments. The American Law Institute has long endorsed the validity of such legislation, and the consensus, as stated in the current literature, is that statutes “remov[ing] the breach of the peace limitation and thereby permit[ting] arrest without warrant for any misdemeanor committed in the arresting officer’s presence” have “‘never been successfully challenged and stan[d] as the law of the land.’”
III
While it is true here that history, if not unequivocal, has expressed a decided, majority view that the police need not obtain an arrest warrant merely because a misdemeanor stopped short of violence or a threat of it, Atwater does not wager all on history. Instead, she asks us to mint a new rule of constitutional law on the understanding that when historical practice fails to speak conclusively to a claim grounded on the Fourth Amendment, courts are left to strike a current balance between individual and societal interests by subjecting particular contemporary circumstances to traditional standards of reasonableness. Atwater accordingly argues for a modern arrest rule, one not necessarily requiring violent breach of the peace, but nonetheless forbidding custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time and when the government shows no compelling need for immediate detention.
If we were to derive a rule exclusively to address the uncontested facts of this case, Atwater might well prevail. She was a known and established resident of Lago Vista with no place to hide and no incentive to flee, and common sense says she would almost certainly have buckled up as a condition of driving off with a citation. In her case, the physical incidents of arrest were merely gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment. Atwater’s claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case.
But we have traditionally recognized that a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review. Often enough, the Fourth Amendment has to be applied on the spur (and in the heat) of the moment, and the object in implementing its command of reasonableness is to draw standards sufficiently clear and simple to be applied with a fair prospect of surviving judicial second-guessing months and years after an arrest or search is made. Courts attempting to strike a reasonable Fourth Amendment balance thus credit the government’s side with an essential interest in readily administrable rules.
[C]omplications arise the moment we begin to think about the possible applications of the several criteria Atwater proposes for drawing a line between minor crimes with limited arrest authority and others not so restricted.
One line, she suggests, might be between “jailable” and “fine-only” offenses, between those for which conviction could result in commitment and those for which it could not. The trouble with this distinction, of course, is that an officer on the street might not be able to tell. It is not merely that we cannot expect every police officer to know the details of frequently complex penalty schemes, but that penalties for ostensibly identical conduct can vary on account of facts difficult (if not impossible) to know at the scene of an arrest. Is this the first offense or is the suspect a repeat offender? Is the weight of the marijuana a gram above or a gram below the fine-only line? Where conduct could implicate more than one criminal prohibition, which one will the district attorney ultimately decide to charge? And so on.
But Atwater’s refinements would not end there. She represents that if the line were drawn at nonjailable traffic offenses, her proposed limitation should be qualified by a proviso authorizing warrantless arrests where “necessary for enforcement of the traffic laws or when [an] offense would otherwise continue and pose a danger to others on the road.” The proviso only compounds the difficulties. Would, for instance, either exception apply to speeding? At oral argument, Atwater’s counsel said that “it would not be reasonable to arrest a driver for speeding unless the speeding rose to the level of reckless driving.” But is it not fair to expect that the chronic speeder will speed again despite a citation in his pocket, and should that not qualify as showing that the “offense would … continue” under Atwater’s rule? And why, as a constitutional matter, should we assume that only reckless driving will “pose a danger to others on the road” while speeding will not?
There is no need for more examples to show that Atwater’s general rule and limiting proviso promise very little in the way of administrability. It is no answer that the police routinely make judgments on grounds like risk of immediate repetition; they surely do and should. But there is a world of difference between making that judgment in choosing between the discretionary leniency of a summons in place of a clearly lawful arrest, and making the same judgment when the question is the lawfulness of the warrantless arrest itself. It is the difference between no basis for legal action challenging the discretionary judgment, on the one hand, and the prospect of evidentiary exclusion or (as here) personal § 1983 liability for the misapplication of a constitutional standard, on the other. Atwater’s rule therefore would not only place police in an almost impossible spot but would guarantee increased litigation over many of the arrests that would occur. For all these reasons, Atwater’s various distinctions between permissible and impermissible arrests for minor crimes strike us as “very unsatisfactory line[s]” to require police officers to draw on a moment’s notice.
Just how easily the costs could outweigh the benefits may be shown by asking, as one Member of this Court did at oral argument, “how bad the problem is out there.” The very fact that the law has never jelled the way Atwater would have it leads one to wonder whether warrantless misdemeanor arrests need constitutional attention, and there is cause to think the answer is no. So far as such arrests might be thought to pose a threat to the probable-cause requirement, anyone arrested for a crime without formal process, whether for felony or misdemeanor, is entitled to a magistrate’s review of probable cause within 48 hours, and there is no reason to think the procedure in this case atypical in giving the suspect a prompt opportunity to request release. Many jurisdictions, moreover, have chosen to impose more restrictive safeguards through statutes limiting warrantless arrests for minor offenses. It is of course easier to devise a minor-offense limitation by statute than to derive one through the Constitution, simply because the statute can let the arrest power turn on any sort of practical consideration without having to subsume it under a broader principle. It is, in fact, only natural that States should resort to this sort of legislative regulation, for it is in the interest of the police to limit petty-offense arrests, which carry costs that are simply too great to incur without good reason. Finally, and significantly, under current doctrine the preference for categorical treatment of Fourth Amendment claims gives way to individualized review when a defendant makes a colorable argument that an arrest, with or without a warrant, was “conducted in an extraordinary manner, unusually harmful to [his] privacy or even physical interests.”
The upshot of all these influences, combined with the good sense (and, failing that, the political accountability) of most local lawmakers and law-enforcement officials, is a dearth of horribles demanding redress. Indeed, when Atwater’s counsel was asked at oral argument for any indications of comparably foolish, warrantless misdemeanor arrests, he could offer only one. We are sure that there are others, but just as surely the country is not confronting anything like an epidemic of unnecessary minor-offense arrests. That fact caps the reasons for rejecting Atwater’s request for the development of a new and distinct body of constitutional law.
Accordingly, we confirm today what our prior cases have intimated: the standard of probable cause “applie[s] to all arrests, without the need to ‘balance’ the interests and circumstances involved in particular situations.” If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.
IV
Atwater’s arrest satisfied constitutional requirements. There is no dispute that Officer Turek had probable cause to believe that Atwater had committed a crime in his presence. She admits that neither she nor her children were wearing seatbelts. Turek was accordingly authorized (not required, but authorized) to make a custodial arrest without balancing costs and benefits or determining whether or not Atwater’s arrest was in some sense necessary.
Nor was the arrest made in an “extraordinary manner, unusually harmful to [her] privacy or … physical interests.” Atwater’s arrest was surely “humiliating,” as she says in her brief, but it was no more “harmful to … privacy or … physical interests” than the normal custodial arrest. She was handcuffed, placed in a squad car, and taken to the local police station, where officers asked her to remove her shoes, jewelry, and glasses, and to empty her pockets. They then took her photograph and placed her in a cell, alone, for about an hour, after which she was taken before a magistrate, and released on \$310 bond. The arrest and booking were inconvenient and embarrassing to Atwater, but not so extraordinary as to violate the Fourth Amendment.
The Court of Appeals’s en banc judgment is affirmed.
Justice O’CONNOR, with whom Justice STEVENS, Justice GINSBURG, and Justice BREYER join, dissenting.
The Court recognizes that the arrest of Gail Atwater was a “pointless indignity” that served no discernible state interest and yet holds that her arrest was constitutionally permissible. Because the Court’s position is inconsistent with the explicit guarantee of the Fourth Amendment, I dissent.
A full custodial arrest, such as the one to which Ms. Atwater was subjected, is the quintessential seizure. When a full custodial arrest is effected without a warrant, the plain language of the Fourth Amendment requires that the arrest be reasonable.
A custodial arrest exacts an obvious toll on an individual’s liberty and privacy, even when the period of custody is relatively brief. The arrestee is subject to a full search of her person and confiscation of her possessions. If the arrestee is the occupant of a car, the entire passenger compartment of the car, including packages therein, is subject to search as well.7 The arrestee may be detained for up to 48 hours without having a magistrate determine whether there in fact was probable cause for the arrest. Because people arrested for all types of violent and nonviolent offenses may be housed together awaiting such review, this detention period is potentially dangerous. And once the period of custody is over, the fact of the arrest is a permanent part of the public record.
We have said that “the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State’s interest in arresting individuals suspected of committing that offense.” If the State has decided that a fine, and not imprisonment, is the appropriate punishment for an offense, the State’s interest in taking a person suspected of committing that offense into custody is surely limited, at best. This is not to say that the State will never have such an interest. A full custodial arrest may on occasion vindicate legitimate state interests, even if the crime is punishable only by fine. Arrest is the surest way to abate criminal conduct. It may also allow the police to verify the offender’s identity and, if the offender poses a flight risk, to ensure her appearance at trial. But when such considerations are not present, a citation or summons may serve the State’s remaining law enforcement interests every bit as effectively as an arrest.
Because a full custodial arrest is such a severe intrusion on an individual’s liberty, its reasonableness hinges on “the degree to which it is needed for the promotion of legitimate governmental interests.” In light of the availability of citations to promote a State’s interests when a fine-only offense has been committed, I cannot concur in a rule which deems a full custodial arrest to be reasonable in every circumstance. Giving police officers constitutional carte blanche to effect an arrest whenever there is probable cause to believe a fine-only misdemeanor has been committed is irreconcilable with the Fourth Amendment’s command that seizures be reasonable. Instead, I would require that when there is probable cause to believe that a fine-only offense has been committed, the police officer should issue a citation unless the officer is “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the additional] intrusion” of a full custodial arrest.
The record in this case makes it abundantly clear that Ms. Atwater’s arrest was constitutionally unreasonable. Atwater readily admits—as she did when Officer Turek pulled her over—that she violated Texas’ seatbelt law. While Turek was justified in stopping Atwater, neither law nor reason supports his decision to arrest her instead of simply giving her a citation. The officer’s actions cannot sensibly be viewed as a permissible means of balancing Atwater’s Fourth Amendment interests with the State’s own legitimate interests.
The Court’s error [] does not merely affect the disposition of this case. The per se rule that the Court creates has potentially serious consequences for the everyday lives of Americans. A broad range of conduct falls into the category of fine-only misdemeanors.
To be sure, such laws are valid and wise exercises of the States’ power to protect the public health and welfare. My concern lies not with the decision to enact or enforce these laws, but rather with the manner in which they may be enforced. Under today’s holding, when a police officer has probable cause to believe that a fine-only misdemeanor offense has occurred, that officer may stop the suspect, issue a citation, and let the person continue on her way. Or, if a traffic violation, the officer may stop the car, arrest the driver, search the driver, search the entire passenger compartment of the car including any purse or package inside, and impound the car and inventory all of its contents. Although the Fourth Amendment expressly requires that the latter course be a reasonable and proportional response to the circumstances of the offense, the majority gives officers unfettered discretion to choose that course without articulating a single reason why such action is appropriate.
Such unbounded discretion carries with it grave potential for abuse. The majority takes comfort in the lack of evidence of “an epidemic of unnecessary minor-offense arrests.” But the relatively small number of published cases dealing with such arrests proves little and should provide little solace. Indeed, as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual. After today, the arsenal available to any officer extends to a full arrest and the searches permissible concomitant to that arrest. An officer’s subjective motivations for making a traffic stop are not relevant considerations in determining the reasonableness of the stop. But it is precisely because these motivations are beyond our purview that we must vigilantly ensure that officers’ poststop actions—which are properly within our reach—comport with the Fourth Amendment’s guarantee of reasonableness.
The Court neglects the Fourth Amendment’s express command in the name of administrative ease. In so doing, it cloaks the pointless indignity that Gail Atwater suffered with the mantle of reasonableness. I respectfully dissent.
Notes, Comments, and Questions
The result in Atwater may exemplify a maxim popularized by Justice Antonin Scalia, who once observed during a speech, “A lot of stuff that’s stupid is not unconstitutional.” Justice Scalia added that during a prior speech, he had proposed that all federal judges should receive a stamp with the words “STUPID BUT CONSTITUTIONAL” that could be used on complaints; then someone sent him one. Scalia, like others expressing similar sentiments, was known to argue that if you wish to prohibit stupid (but constitutional) conduct, you should contact your legislature, not federal judges.
If students encounter examples in this book of disagreeable police (or prosecutorial) conduct that the Court has deemed constitutional, they may wish to ask themselves two questions: (1) Is it plausible that a legislature can solve the problem that the Court has declined to solve, and (2) what specific suggestions might I have for my legislator? Most students are far more likely to become legislators than Supreme Court Justices.
After deciding in Atwater that the Fourth Amendment allows warrantless arrests even for minor crimes, the Court faced an odd set of facts in Virginia v. Moore. There, the Court considered a warrantless arrest conducted in violation of a state law. The issue was whether violating state law made the arrest “unreasonable” under the Fourth Amendment.
Supreme Court of the United States
Virginia v. David Lee Moore
Decided April 23, 2008 – 553 U.S. 164
Justice SCALIA delivered the opinion of the Court.
We consider whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law.
I
On February 20, 2003, two city of Portsmouth police officers stopped a car driven by David Lee Moore. They had heard over the police radio that a person known as “Chubs” was driving with a suspended license, and one of the officers knew Moore by that nickname. The officers determined that Moore’s license was in fact suspended, and arrested him for the misdemeanor of driving on a suspended license, which is punishable under Virginia law by a year in jail and a \$2,500 fine. The officers subsequently searched Moore and found that he was carrying 16 grams of crack cocaine and \$516 in cash.
Under state law, the officers should have issued Moore a summons instead of arresting him. Driving on a suspended license, like some other misdemeanors, is not an arrestable offense except as to those who “fail or refuse to discontinue” the violation, and those whom the officer reasonably believes to be likely to disregard a summons, or likely to harm themselves or others. The intermediate appellate court found none of these circumstances applicable, and Virginia did not appeal that determination.
Moore was charged with possessing cocaine with the intent to distribute it in violation of Virginia law. He filed a pretrial motion to suppress the evidence from the arrest search. Virginia law does not, as a general matter, require suppression of evidence obtained in violation of state law. Moore argued, however, that suppression was required by the Fourth Amendment. The trial court denied the motion, and after a bench trial found Moore guilty of the drug charge and sentenced him to a 5-year prison term, with one year and six months of the sentence suspended. The conviction was reversed by a panel of Virginia’s intermediate court on Fourth Amendment grounds, reinstated by the intermediate court sitting en banc, and finally reversed again by the Virginia Supreme Court. We granted certiorari.
A
When history has not provided a conclusive answer, we have analyzed a search or seizure in light of traditional standards of reasonableness “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” That methodology provides no support for Moore’s Fourth Amendment claim. In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable.
Our decisions counsel against changing this calculus when a State chooses to protect privacy beyond the level that the Fourth Amendment requires. We have treated additional protections exclusively as matters of state law. We have applied the same principle in the seizure context. We thought it obvious that the Fourth Amendment’s meaning did not change with local law enforcement practices—even practices set by rule. While those practices “vary from place to place and from time to time,” Fourth Amendment protections are not “so variable” and cannot “be made to turn upon such trivialities.”
Some earlier [decisions] excluded evidence obtained in violation of state law, but those decisions rested on our supervisory power over the federal courts, rather than the Constitution.
B
We are convinced that the approach of our prior cases is correct, because an arrest based on probable cause serves interests that have long been seen as sufficient to justify the seizure. Arrest ensures that a suspect appears to answer charges and does not continue a crime, and it safeguards evidence and enables officers to conduct an in-custody investigation.
Moore argues that a State has no interest in arrest when it has a policy against arresting for certain crimes. That is not so, because arrest will still ensure a suspect’s appearance at trial, prevent him from continuing his offense, and enable officers to investigate the incident more thoroughly. State arrest restrictions are more accurately characterized as showing that the State values its interests in forgoing arrests more highly than its interests in making them; or as showing that the State places a higher premium on privacy than the Fourth Amendment requires. A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional.
If we concluded otherwise, we would often frustrate rather than further state policy. Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires, but it also chooses not to attach to violations of its arrest rules the potent remedies that federal courts have applied to Fourth Amendment violations. Virginia does not, for example, ordinarily exclude from criminal trials evidence obtained in violation of its statutes. Moore would allow Virginia to accord enhanced protection against arrest only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a provision designed to protect against searches and seizures.
Incorporating state-law arrest limitations into the Constitution would produce a constitutional regime no less vague and unpredictable than the one we rejected in Atwater. The constitutional standard would be only as easy to apply as the underlying state law, and state law can be complicated indeed. The Virginia statute in this case, for example, calls on law enforcement officers to weigh just the sort of case-specific factors that Atwater said would deter legitimate arrests if made part of the constitutional inquiry. It would authorize arrest if a misdemeanor suspect fails or refuses to discontinue the unlawful act, or if the officer believes the suspect to be likely to disregard a summons. Atwater specifically noted the “extremely poor judgment” displayed in arresting a local resident who would “almost certainly” have discontinued the offense and who had “no place to hide and no incentive to flee.” It nonetheless declined to make those considerations part of the constitutional calculus. Atwater differs from this case in only one significant respect: It considered (and rejected) federal constitutional remedies for all minor-misdemeanor arrests; Moore seeks them in only that subset of minor-misdemeanor arrests in which there is the least to be gained—that is, where the State has already acted to constrain officers’ discretion and prevent abuse. Here we confront fewer horribles than in Atwater, and less of a need for redress.
Finally, linking Fourth Amendment protections to state law would cause them to “vary from place to place and from time to time.” Even at the same place and time, the Fourth Amendment’s protections might vary if federal officers were not subject to the same statutory constraints as state officers.
We conclude that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections.
IV
Moore argues that even if the Constitution allowed his arrest, it did not allow the arresting officers to search him. We have recognized, however, that officers may perform searches incident to constitutionally permissible arrests in order to ensure their safety and safeguard evidence. We have described this rule as covering any “lawful arrest” with constitutional law as the reference point. That is to say, we have equated a lawful arrest with an arrest based on probable cause: “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Moore correctly notes that several important state-court decisions have defined the lawfulness of arrest in terms of compliance with state law. But it is not surprising that States have used “lawful” as shorthand for compliance with state law, while our constitutional decision in Robinson [, 414 U.S. 218 (1973),] used “lawful” as shorthand for compliance with constitutional constraints.
The Virginia Supreme Court may have concluded that Knowles [v. Iowa, 525 U.S. 113 (1998)] required the exclusion of evidence seized from Moore because, under state law, the officers who arrested Moore should have issued him a citation instead. This argument might have force if the Constitution forbade Moore’s arrest, because we have sometimes excluded evidence obtained through unconstitutional methods in order to deter constitutional violations. But the arrest rules that the officers violated were those of state law alone, and as we have just concluded, it is not the province of the Fourth Amendment to enforce state law. That Amendment does not require the exclusion of evidence obtained from a constitutionally permissible arrest.
We reaffirm against a novel challenge what we have signaled for more than half a century. When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety. The judgment of the Supreme Court of Virginia is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Justice GINSBURG, concurring in the judgment.
The Fourth Amendment, today’s decision holds, does not put States to an all-or-nothing choice in this regard. A State may accord protection against arrest beyond what the Fourth Amendment requires, yet restrict the remedies available when police deny to persons they apprehend the extra protection state law orders. Because I agree that the arrest and search Moore challenges violated Virginia law, but did not violate the Fourth Amendment, I join the Court’s judgment.
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In our next chapter, we consider a form of seizure less robust than an arrest—a “stop and frisk.” | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.18%3A_Chapter_19_-_Seizures_and_Arrests.txt |
This chapter concerns the law enforcement tactic known as “stop and frisk.” Although such conduct is less invasive than an arrest, the “stop” is nonetheless a seizure that must be “reasonable” to be lawful under the Fourth Amendment. The “frisk” is a search that also must be reasonable to be lawful.
Our reading will review (1) the basic definition of “stop and frisk” and the Court’s justification for allowing it absent probable cause, (2) the difference between a stop and frisk and a full arrest (which requires probable cause), and (3) what police may do during a “Terry stop,” as these stops and frisks have come to be known.
We begin with Terry v. Ohio, which sets forth the doctrine permitting “stop and frisk” in some circumstances and which has given its name to the practice.
Supreme Court of the United States
John W. Terry v. State of Ohio
Decided June 10, 1968 – 392 U.S. 1
Mr. Chief Justice WARREN delivered the opinion of the Court.
This case presents serious questions concerning the role of the Fourth Amendment in the confrontation on the street between the citizen and the policeman investigating suspicious circumstances.
Petitioner Terry was convicted of carrying a concealed weapon and sentenced to the statutorily prescribed term of one to three years in the penitentiary. Following the denial of a pretrial motion to suppress, the prosecution introduced in evidence two revolvers and a number of bullets seized from Terry and a codefendant, Richard Chilton, by Cleveland Police Detective Martin McFadden. At the hearing on the motion to suppress this evidence, Officer McFadden testified that while he was patrolling in plain clothes in downtown Cleveland at approximately 2:30 in the afternoon of October 31, 1963, his attention was attracted by two men, Chilton and Terry, standing on the corner of Huron Road and Euclid Avenue. He had never seen the two men before, and he was unable to say precisely what first drew his eye to them. However, he testified that he had been a policeman for 39 years and a detective for 35 and that he had been assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years. He explained that he had developed routine habits of observation over the years and that he would “stand and watch people or walk and watch people at many intervals of the day.” He added: “Now, in this case when I looked over they didn’t look right to me at the time.”
His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to 400 feet away from the two men. “I get more purpose to watch them when I seen their movements,” he testified. He saw one of the men leave the other one and walk southwest on Huron Road, past some stores. The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store window again, and returning to confer with the first man at the corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. At one point, while the two were standing together on the corner, a third man approached them and engaged them briefly in conversation. This man then left the two others and walked west on Euclid Avenue. Chilton and Terry resumed their measured pacing, peering and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, heading west on Euclid Avenue, following the path taken earlier by the third man.
By this time Officer McFadden had become thoroughly suspicious. He testified that after observing their elaborately casual and oft-repeated reconnaissance of the store window on Huron Road, he suspected the two men of “casing a job, a stick-up,” and that he considered it his duty as a police officer to investigate further. He added that he feared “they may have a gun.” Thus, Officer McFadden followed Chilton and Terry and saw them stop in front of Zucker’s store to talk to the same man who had conferred with them earlier on the street corner. Deciding that the situation was ripe for direct action, Officer McFadden approached the three men, identified himself as a police officer and asked for their names. At this point his knowledge was confined to what he had observed. He was not acquainted with any of the three men by name or by sight, and he had received no information concerning them from any other source. When the men “mumbled something” in response to his inquiries, Officer McFadden grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others, and patted down the outside of his clothing. In the left breast pocket of Terry’s overcoat Officer McFadden felt a pistol. He reached inside the overcoat pocket, but was unable to remove the gun. At this point, keeping Terry between himself and the others, the officer ordered all three men to enter Zucker’s store. As they went in, he removed Terry’s overcoat completely, removed a .38-caliber revolver from the pocket and ordered all three men to face the wall with their hands raised. Officer McFadden proceeded to pat down the outer clothing of Chilton and the third man, Katz. He discovered another revolver in the outer pocket of Chilton’s overcoat, but no weapons were found on Katz. The officer testified that he only patted the men down to see whether they had weapons, and that he did not put his hands beneath the outer garments of either Terry or Chilton until he felt their guns. So far as appears from the record, he never placed his hands beneath Katz’ outer garments. Officer McFadden seized Chilton’s gun, asked the proprietor of the store to call a police wagon, and took all three men to the station, where Chilton and Terry were formally charged with carrying concealed weapons.
On the motion to suppress the guns the prosecution took the position that they had been seized following a search incident to a lawful arrest. The trial court rejected this theory, stating that it “would be stretching the facts beyond reasonable comprehension” to find that Officer McFadden had had probable cause to arrest the men before he patted them down for weapons. However, the court denied the defendants’ motion on the ground that Officer McFadden, on the basis of his experience, “had reasonable cause to believe … that the defendants were conducting themselves suspiciously, and some interrogation should be made of their action.” Purely for his own protection, the court held, the officer had the right to pat down the outer clothing of these men, who he had reasonable cause to believe might be armed. The court distinguished between an investigatory “stop” and an arrest, and between a “frisk” of the outer clothing for weapons and a full-blown search for evidence of crime. The frisk, it held, was essential to the proper performance of the officer’s investigatory duties, for without it “the answer to the police officer may be a bullet, and a loaded pistol discovered during the frisk is admissible.”
After the court denied their motion to suppress, Chilton and Terry waived jury trial and pleaded not guilty. The court adjudged them guilty, and the Court of Appeals for the Eighth Judicial District, Cuyahoga County, affirmed. The Supreme Court of Ohio dismissed their appeal. We granted certiorari. We affirm the conviction.
I
The question is whether in all the circumstances of this on-the-street encounter, [Terry’s] right to personal security was violated by an unreasonable search and seizure.
We would be less than candid if we did not acknowledge that this question thrusts to the fore difficult and troublesome issues regarding a sensitive area of police activity—issues which have never before been squarely presented to this Court. Reflective of the tensions involved are the practical and constitutional arguments pressed with great vigor on both sides of the public debate over the power of the police to “stop and frisk”—as it is sometimes euphemistically termed—suspicious persons.
On the one hand, it is frequently argued that in dealing with the rapidly unfolding and often dangerous situations on city streets the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess. For this purpose it is urged that distinctions should be made between a “stop” and an “arrest” (or a “seizure” of a person), and between a “frisk” and a “search.”
On the other side the argument is made that the authority of the police must be strictly circumscribed by the law of arrest and search. It is contended with some force that there is not—and cannot be—a variety of police activity which does not depend solely upon the voluntary cooperation of the citizen and yet which stops short of an arrest based upon probable cause to make such an arrest.
In this context we approach the issues in this case mindful of the limitations of the judicial function in controlling the myriad daily situations in which policemen and citizens confront each other on the street. No judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us. Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our decision, courts still retain their traditional responsibility to guard against police conduct which is over-bearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires.
Having thus roughly sketched the perimeters of the constitutional debate over the limits on police investigative conduct in general and the background against which this case presents itself, we turn our attention to the quite narrow question posed by the facts before us: whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest.
II
Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant. That is, we must decide whether and when Officer McFadden “seized” Terry and whether and when he conducted a “search.” There is some suggestion in the use of such terms as “stop” and “frisk” that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a “search” or “seizure” within the meaning of the Constitution. We emphatically reject this notion. It is quite plain that the Fourth Amendment governs “seizures” of the person which do not eventuate in a trip to the station house and prosecution for crime—“arrests” in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a “search.” Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a “petty indignity.” It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.
The danger in the logic which proceeds upon distinctions between a “stop” and an “arrest,” or “seizure” of the person, and between a “frisk” and a “search” is twofold. It seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen. And … it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation. This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. The scope of the search must be “strictly tied to and justified by” the circumstances which rendered its initiation permissible.
The distinctions of classical “stop-and-frisk” theory thus serve to divert attention from the central inquiry under the Fourth Amendment—the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security. “Search” and “seizure” are not talismans. We therefore reject the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a “technical arrest” or a “full-blown search.”
In this case there can be no question, then, that Officer McFadden “seized” petitioner and subjected him to a “search” when he took hold of him and patted down the outer surfaces of his clothing. We must decide whether at that point it was reasonable for Officer McFadden to have interfered with petitioner’s personal security as he did. And in determining whether the seizure and search were “unreasonable” our inquiry is a dual one—whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.
III
If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we would have to ascertain whether “probable cause” existed to justify the search and seizure which took place. However, that is not the case. [W]e deal here with an entire rubric of police conduct—necessarily swift action predicated upon the on-the-spot observations of the officer on the beat—which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.
In order to assess the reasonableness of Officer McFadden’s conduct as a general proposition, it is necessary “first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,” for there is “no ready test for determining reasonableness other than by balancing the need to search (or seize) against the invasion which the search (or seizure) entails.” And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. [I]t is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate? And simple “‘good faith on the part of the arresting officer is not enough.’ If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,’ only in the discretion of the police.”
Applying these principles to this case, we consider first the nature and extent of the governmental interests involved. One general interest is of course that of effective crime prevention and detection. It was this legitimate investigative function Officer McFadden was discharging when he decided to approach petitioner and his companions. He had observed Terry, Chilton, and Katz go through a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation.
The crux of this case, however, is not the propriety of Officer McFadden’s taking steps to investigate petitioner’s suspicious behavior, but rather, whether there was justification for McFadden’s invasion of Terry’s personal security by searching him for weapons in the course of that investigation. We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.
[W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.
We must still consider, however, the nature and quality of the intrusion on individual rights which must be accepted if police officers are to be conceded the right to search for weapons in situations where probable cause to arrest for crime is lacking. Even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.
Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.
IV
We must now examine the conduct of Officer McFadden in this case to determine whether his search and seizure of petitioner were reasonable, both at their inception and as conducted. He had observed Terry, together with Chilton and another man, acting in a manner he took to be preface to a “stick-up.” We think on the facts and circumstances Officer McFadden detailed before the trial judge a reasonably prudent man would have been warranted in believing petitioner was armed and thus presented a threat to the officer’s safety while he was investigating his suspicious behavior. The actions of Terry and Chilton were consistent with McFadden’s hypothesis that these men were contemplating a daylight robbery—which, it is reasonable to assume, would be likely to involve the use of weapons—and nothing in their conduct from the time he first noticed them until the time he confronted them and identified himself as a police officer gave him sufficient reason to negate that hypothesis. Thus, when Officer McFadden approached the three men gathered before the display window at Zucker’s store he had observed enough to make it quite reasonable to fear that they were armed; and nothing in their response to his hailing them, identifying himself as a police officer, and asking their names served to dispel that reasonable belief. We cannot say his decision at that point to seize Terry and pat his clothing for weapons was the product of a volatile or inventive imagination, or was undertaken simply as an act of harassment; the record evidences the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so.
We need not develop at length in this case, however, the limitations which the Fourth Amendment places upon a protective seizure and search for weapons. These limitations will have to be developed in the concrete factual circumstances of individual cases. Suffice it to note that such a search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime. The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.
The scope of the search in this case presents no serious problem in light of these standards. Officer McFadden patted down the outer clothing of petitioner and his two companions. He did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns. He never did invade Katz’ person beyond the outer surfaces of his clothes, since he discovered nothing in his patdown which might have been a weapon. Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity he might find.
V
We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.
Mr. Justice DOUGLAS, dissenting.
The opinion of the Court disclaims the existence of “probable cause.” If loitering were in issue and that was the offense charged, there would be “probable cause” shown. But the crime here is carrying concealed weapons; and there is no basis for concluding that the officer had “probable cause” for believing that that crime was being committed. Had a warrant been sought, a magistrate would, therefore, have been unauthorized to issue one, for he can act only if there is a showing of “probable cause.” We hold today that the police have greater authority to make a “seizure” and conduct a “search” than a judge has to authorize such action. We have said precisely the opposite over and over again.
[P]olice officers up to today have been permitted to effect arrests or searches without warrants only when the facts within their personal knowledge would satisfy the constitutional standard of probable cause. At the time of their “seizure” without a warrant they must possess facts concerning the person arrested that would have satisfied a magistrate that “probable cause” was indeed present. The term “probable cause” rings a bell of certainty that is not sounded by phrases such as “reasonable suspicion.”
To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.
There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.
Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.
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Selections from opinions in the next case, United States v. Place, were included in the assignment for Chapter 5. In that chapter, the case was presented to illustrate that dog sniffs in public places—in and of themselves—do not constitute searches. In this chapter, we return to the case to study what constitutes a permissible seizure of “effects.”
Supreme Court of the United States
United States v. Raymond J. Place
Decided June 20, 1983 – 462 U.S. 696
Justice O’CONNOR delivered the opinion of the Court.
This case presents the issue whether the Fourth Amendment prohibits law enforcement authorities from temporarily detaining personal luggage for exposure to a trained narcotics detection dog on the basis of reasonable suspicion that the luggage contains narcotics. Given the enforcement problems associated with the detection of narcotics trafficking and the minimal intrusion that a properly limited detention would entail, we conclude that the Fourth Amendment does not prohibit such a detention. On the facts of this case, however, we hold that the police conduct exceeded the bounds of a permissible investigative detention of the luggage.
I
Respondent Raymond J. Place’s behavior aroused the suspicions of law enforcement officers as he waited in line at the Miami International Airport to purchase a ticket to New York’s LaGuardia Airport. As Place proceeded to the gate for his flight, the agents approached him and requested his airline ticket and some identification. Place complied with the request and consented to a search of the two suitcases he had checked. Because his flight was about to depart, however, the agents decided not to search the luggage.
Prompted by Place’s parting remark that he had recognized that they were police, the agents inspected the address tags on the checked luggage and noted discrepancies in the two street addresses. Further investigation revealed that neither address existed and that the telephone number Place had given the airline belonged to a third address on the same street. On the basis of their encounter with Place and this information, the Miami agents called Drug Enforcement Administration (DEA) authorities in New York to relay their information about Place.
Two DEA agents waited for Place at the arrival gate at LaGuardia Airport in New York. There again, his behavior aroused the suspicion of the agents. After he had claimed his two bags and called a limousine, the agents decided to approach him. They identified themselves as federal narcotics agents, to which Place responded that he knew they were “cops” and had spotted them as soon as he had deplaned. One of the agents informed Place that, based on their own observations and information obtained from the Miami authorities, they believed that he might be carrying narcotics. After identifying the bags as belonging to him, Place stated that a number of police at the Miami Airport had surrounded him and searched his baggage. The agents responded that their information was to the contrary. The agents requested and received identification from Place—a New Jersey driver’s license, on which the agents later ran a computer check that disclosed no offenses, and his airline ticket receipt. When Place refused to consent to a search of his luggage, one of the agents told him that they were going to take the luggage to a federal judge to try to obtain a search warrant and that Place was free to accompany them. Place declined, but obtained from one of the agents telephone numbers at which the agents could be reached.
The agents then took the bags to Kennedy Airport,1 where they subjected the bags to a “sniff test” by a trained narcotics detection dog. The dog reacted positively to the smaller of the two bags but ambiguously to the larger bag. Approximately 90 minutes had elapsed since the seizure of respondent’s luggage. Because it was late on a Friday afternoon, the agents retained the luggage until Monday morning, when they secured a search warrant from a magistrate for the smaller bag. Upon opening that bag, the agents discovered 1,125 grams of cocaine.
Place was indicted for possession of cocaine with intent to distribute. In the District Court, Place moved to suppress the contents of the luggage seized from him at LaGuardia Airport. The District Court denied the motion. Place pleaded guilty to the possession charge, reserving the right to appeal the denial of his motion to suppress. On appeal of the conviction, the United States Court of Appeals for the Second Circuit reversed. We granted certiorari and now affirm.
II
In the ordinary case, the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized. Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.
In this case, the Government asks us to recognize the reasonableness under the Fourth Amendment of warrantless seizures of personal luggage from the custody of the owner on the basis of less than probable cause, for the purpose of pursuing a limited course of investigation, short of opening the luggage, that would quickly confirm or dispel the authorities’ suspicion. Specifically, we are asked to apply the principles of Terry v. Ohio to permit such seizures on the basis of reasonable, articulable suspicion, premised on objective facts, that the luggage contains contraband or evidence of a crime. In our view, such application is appropriate.
The exception to the probable-cause requirement for limited seizures of the person recognized in Terry and its progeny rests on a balancing of the competing interests to determine the reasonableness of the type of seizure involved within the meaning of “the Fourth Amendment’s general proscription against unreasonable searches and seizures.” We must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. When the nature and extent of the detention are minimally intrusive of the individual’s Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause.
We examine first the governmental interest offered as a justification for a brief seizure of luggage from the suspect’s custody for the purpose of pursuing a limited course of investigation. The Government contends that, where the authorities possess specific and articulable facts warranting a reasonable belief that a traveler’s luggage contains narcotics, the governmental interest in seizing the luggage briefly to pursue further investigation is substantial. We agree.
Against this strong governmental interest, we must weigh the nature and extent of the intrusion upon the individual’s Fourth Amendment rights when the police briefly detain luggage for limited investigative purposes. On this point, respondent Place urges that the rationale for a Terry stop of the person is wholly inapplicable to investigative detentions of personality. Specifically, the Terry exception to the probable-cause requirement is premised on the notion that a Terry-type stop of the person is substantially less intrusive of a person’s liberty interests than a formal arrest. In the property context, however, Place urges, there are no degrees of intrusion. Once the owner’s property is seized, the dispossession is absolute.
We disagree. The intrusion on possessory interests occasioned by a seizure of one’s personal effects can vary both in its nature and extent. The seizure may be made after the owner has relinquished control of the property to a third party or, as here, from the immediate custody and control of the owner. Moreover, the police may confine their investigation to an on-the-spot inquiry—for example, immediate exposure of the luggage to a trained narcotics detection dog—or transport the property to another location. Given the fact that seizures of property can vary in intrusiveness, some brief detentions of personal effects may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a seizure based only on specific articulable facts that the property contains contraband or evidence of a crime.
In sum, we conclude that when an officer’s observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope.
The purpose for which respondent’s luggage was seized, of course, was to arrange its exposure to a narcotics detection dog. Obviously, if this investigative procedure is itself a search requiring probable cause, the initial seizure of respondent’s luggage for the purpose of subjecting it to the sniff test—no matter how brief—could not be justified on less than probable cause.
[The Court then held that “exposure of respondent’s luggage, which was located in a public place, to a trained canine—did not constitute a ‘search’ within the meaning of the Fourth Amendment.”]
III
We [next] examine whether the agents’ conduct in this case was such as to place the seizure within the general rule requiring probable cause for a seizure or within Terry’s exception to that rule.
The precise type of detention we confront here is seizure of personal luggage from the immediate possession of the suspect for the purpose of arranging exposure to a narcotics detection dog. Particularly in the case of detention of luggage within the traveler’s immediate possession, the police conduct intrudes on both the suspect’s possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary. The person whose luggage is detained is technically still free to continue his travels or carry out other personal activities pending release of the luggage. Moreover, he is not subjected to the coercive atmosphere of a custodial confinement or to the public indignity of being personally detained. Nevertheless, such a seizure can effectively restrain the person since he is subjected to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its return. Therefore, when the police seize luggage from the suspect’s custody, we think the limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the person’s luggage on less than probable cause. Under this standard, it is clear that the police conduct here exceeded the permissible limits of a Terry-type investigative stop.
The length of the detention of respondent’s luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause. [I]n assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation. We note that here the New York agents knew the time of Place’s scheduled arrival at LaGuardia, had ample time to arrange for their additional investigation at that location, and thereby could have minimized the intrusion on respondent’s Fourth Amendment interests. Thus, although we decline to adopt any outside time limitation for a permissible Terry stop, we have never approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case.
Although the 90-minute detention of respondent’s luggage is sufficient to render the seizure unreasonable, the violation was exacerbated by the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion. In short, we hold that the detention of respondent’s luggage in this case went beyond the narrow authority possessed by police to detain briefly luggage reasonably suspected to contain narcotics.
IV
We conclude that, under all of the circumstances of this case, the seizure of respondent’s luggage was unreasonable under the Fourth Amendment. Consequently, the evidence obtained from the subsequent search of his luggage was inadmissible, and Place’s conviction must be reversed. The judgment of the Court of Appeals, accordingly, is affirmed.
* * *
The next case sheds further light on the permissible scope of investigatory stops based on reasonable suspicion. In particular, it helps to illustrate how long a person may be detained for a “Terry stop.”
Supreme Court of the United States
United States v. William Harris Sharpe
Decided March 20, 1985 – 470 U.S. 675
Chief Justice BURGER delivered the opinion of the Court.
We granted certiorari to decide whether an individual reasonably suspected of engaging in criminal activity may be detained for a period of 20 minutes, when the detention is necessary for law enforcement officers to conduct a limited investigation of the suspected criminal activity.
A
On the morning of June 9, 1978, Agent Cooke of the Drug Enforcement Administration (DEA) was on patrol in an unmarked vehicle on a coastal road near Sunset Beach, North Carolina, an area under surveillance for suspected drug trafficking. At approximately 6:30 a.m., Cooke noticed a blue pickup truck with an attached camper shell traveling on the highway in tandem with a blue Pontiac Bonneville. Respondent Savage was driving the pickup, and respondent Sharpe was driving the Pontiac. The Pontiac also carried a passenger, Davis, the charges against whom were later dropped. Observing that the truck was riding low in the rear and that the camper did not bounce or sway appreciably when the truck drove over bumps or around curves, Agent Cooke concluded that it was heavily loaded. A quilted material covered the rear and side windows of the camper.
Cooke’s suspicions were sufficiently aroused to follow the two vehicles for approximately 20 miles as they proceeded south into South Carolina. He then decided to make an “investigative stop” and radioed the State Highway Patrol for assistance. Officer Thrasher, driving a marked patrol car, responded to the call. Almost immediately after Thrasher caught up with the procession, the Pontiac and the pickup turned off the highway and onto a campground road. Cooke and Thrasher followed the two vehicles as the latter drove along the road at 55 to 60 miles an hour, exceeding the speed limit of 35 miles an hour. The road eventually looped back to the highway, onto which Savage and Sharpe turned and continued to drive south.
At this point, all four vehicles were in the middle lane of the three right-hand lanes of the highway. Agent Cooke asked Officer Thrasher to signal both vehicles to stop. Thrasher pulled alongside the Pontiac, which was in the lead, turned on his flashing light, and motioned for the driver of the Pontiac to stop. As Sharpe moved the Pontiac into the right lane, the pickup truck cut between the Pontiac and Thrasher’s patrol car, nearly hitting the patrol car, and continued down the highway. Thrasher pursued the truck while Cooke pulled up behind the Pontiac.
Cooke approached the Pontiac and identified himself. He requested identification, and Sharpe produced a Georgia driver’s license bearing the name of Raymond J. Pavlovich. Cooke then attempted to radio Thrasher to determine whether he had been successful in stopping the pickup truck, but he was unable to make contact for several minutes, apparently because Thrasher was not in his patrol car. Cooke radioed the local police for assistance, and two officers from the Myrtle Beach Police Department arrived about 10 minutes later. Asking the two officers to “maintain the situation,” Cooke left to join Thrasher.
In the meantime, Thrasher had stopped the pickup truck about one-half mile down the road. After stopping the truck, Thrasher had approached it with his revolver drawn, ordered the driver, Savage, to get out and assume a “spread eagled” position against the side of the truck, and patted him down. Thrasher then holstered his gun and asked Savage for his driver’s license and the truck’s vehicle registration. Savage produced his own Florida driver’s license and a bill of sale for the truck bearing the name of Pavlovich. In response to questions from Thrasher concerning the ownership of the truck, Savage said that the truck belonged to a friend and that he was taking it to have its shock absorbers repaired. When Thrasher told Savage that he would be held until the arrival of Cooke, whom Thrasher identified as a DEA agent, Savage became nervous, said that he wanted to leave, and requested the return of his driver’s license. Thrasher replied that Savage was not free to leave at that time.
Agent Cooke arrived at the scene approximately 15 minutes after the truck had been stopped. Thrasher handed Cooke Savage’s license and the bill of sale for the truck; Cooke noted that the bill of sale bore the same name as Sharpe’s license. Cooke identified himself to Savage as a DEA agent and said that he thought the truck was loaded with marihuana. Cooke twice sought permission to search the camper, but Savage declined to give it, explaining that he was not the owner of the truck. Cooke then stepped on the rear of the truck and, observing that it did not sink any lower, confirmed his suspicion that it was probably overloaded. He put his nose against the rear window, which was covered from the inside, and reported that he could smell marihuana. Without seeking Savage’s permission, Cooke removed the keys from the ignition, opened the rear of the camper, and observed a large number of burlap-wrapped bales resembling bales of marihuana that Cooke had seen in previous investigations. Agent Cooke then placed Savage under arrest and left him with Thrasher.
Cooke returned to the Pontiac and arrested Sharpe and Davis. Approximately 30 to 40 minutes had elapsed between the time Cooke stopped the Pontiac and the time he returned to arrest Sharpe and Davis. Cooke assembled the various parties and vehicles and led them to the Myrtle Beach police station. That evening, DEA agents took the truck to the Federal Building in Charleston, South Carolina. Several days later, Cooke supervised the unloading of the truck, which contained 43 bales weighing a total of 2,629 pounds. Acting without a search warrant, Cooke had eight randomly selected bales opened and sampled. Chemical tests showed that the samples were marihuana.
B
Sharpe and Savage were charged with possession of a controlled substance with intent to distribute it. The United States District Court for the District of South Carolina denied respondents’ motion to suppress the contraband, and respondents were convicted. A divided panel of the Court of Appeals for the Fourth Circuit reversed the convictions. We granted the petition, vacated the judgment of the Court of Appeals, and remanded the case for further consideration. On remand, a divided panel of the Court of Appeals again reversed the convictions. We granted certiorari and we reverse.
II
The only issue in this case [] is whether it was reasonable under the circumstances facing Agent Cooke and Officer Thrasher to detain Savage, whose vehicle contained the challenged evidence, for approximately 20 minutes.2 We conclude that the detention of Savage clearly meets the Fourth Amendment’s standard of reasonableness.
Obviously, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop. But our cases impose no rigid time limitation on Terry stops. While it is clear that “the brevity of the invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion,” we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes. Much as a “bright line” rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria.
In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But “[t]he fact that the protection of the public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, itself, render the search unreasonable.” The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.
We readily conclude that, given the circumstances facing him, Agent Cooke pursued his investigation in a diligent and reasonable manner. During most of Savage’s 20-minute detention, Cooke was attempting to contact Thrasher and enlisting the help of the local police who remained with Sharpe while Cooke left to pursue Officer Thrasher and the pickup. Once Cooke reached Officer Thrasher and Savage, he proceeded expeditiously: within the space of a few minutes, he examined Savage’s driver’s license and the truck’s bill of sale, requested (and was denied) permission to search the truck, stepped on the rear bumper and noted that the truck did not move, confirming his suspicion that it was probably overloaded. He then detected the odor of marihuana.
Clearly this case does not involve any delay unnecessary to the legitimate investigation of the law enforcement officers. Respondents presented no evidence that the officers were dilatory in their investigation. The delay in this case was attributable almost entirely to the evasive actions of Savage, who sought to elude the police as Sharpe moved his Pontiac to the side of the road. Except for Savage’s maneuvers, only a short and certainly permissible pre-arrest detention would likely have taken place. The somewhat longer detention was simply the result of a “graduate[d] … respons[e] to the demands of [the] particular situation.”
We reject the contention that a 20-minute stop is unreasonable when the police have acted diligently and a suspect’s actions contribute to the added delay about which he complains. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
Notes, Comments, and Questions
The Court decided in Illinois v. Caballes (Chapter 5) that when a motorist is lawfully held for a traffic stop, police use of drug-sniffing dogs to investigate a vehicle is not a “search.” In Rodriguez v. United States, 135 S. Ct. 1609 (2015), the Court considered whether police may lengthen a traffic stop for the purpose of conducting such a dog sniff.
A police officer pulled over Dennys Rodriguez for driving on the shoulder of a Nebraska state highway, which is unlawful. During the stop, the officer asked Rodriguez why he had driven on the shoulder and, after receiving an answer, “gathered Rodriguez’s license, registration, and proof of insurance.” He then ran “a records check on Rodriguez” before returning to question Rodriguez and his passenger. Next, the officer returned to his car again, ran a records check on the passenger, and “began writing a warning ticket for Rodriguez for driving on the shoulder of the road.” Rodriguez made no objection to any of this conduct.
After writing the warning ticket and presenting it to Rodriguez (along with other documents the officer had collected during the stop), the officer asked Rodriguez for permission to walk a drug dog around Rodriguez’s vehicle. Rodriguez declined, and the officer ordered Rodriguez to stay put, which he did. The officer brought the dog, and when the dog “alerted to the presence of drugs,” the officer searched the car and found “a large bag of methamphetamine.” Rodriguez was eventually convicted of “possession with intent to distribute 50 grams or more of methamphetamine.”
Rodriguez argued that the officer impermissibly extended the traffic stop—after it was essentially finished—so that he could conduct the dog sniff. Rodriguez argued further that the extension constituted an unlawful seizure. The Court agreed.
In an opinion by Justice Ginsburg, the Court wrote:
“A seizure for a traffic violation justifies a police investigation of that violation. ‘[A] relatively brief encounter,’ a routine traffic stop is ‘more analogous to a so-called “Terry stop” … than to a formal arrest.’ Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop and attend to related safety concerns. Because addressing the infraction is the purpose of the stop, it may ‘last no longer than is necessary to effectuate th[at] purpose.’ Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.”
The Court wrote that while activities related to traffic enforcement—such as checking a driver’s license and registration—are permissible parts of a traffic stop, “[a] dog sniff, by contrast, is a measure aimed at ‘detect[ing] evidence of ordinary criminal wrongdoing.’ Candidly, the Government acknowledged at oral argument that a dog sniff, unlike the routine measures just mentioned, is not an ordinary incident of a traffic stop. Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.”
The Court rejected the prosecution’s argument that so long as the total length of the stop remains reasonable, an officer may extend it to conduct a dog sniff.
“The Government argues that an officer may ‘incremental[ly]’ prolong a stop to conduct a dog sniff so long as the officer is reasonably diligent in pursuing the traffic-related purpose of the stop, and the overall duration of the stop remains reasonable in relation to the duration of other traffic stops involving similar circumstances. The Government’s argument, in effect, is that by completing all traffic-related tasks expeditiously, an officer can earn bonus time to pursue an unrelated criminal investigation. The reasonableness of a seizure, however, depends on what the police in fact do. In this regard, the Government acknowledges that ‘an officer always has to be reasonably diligent.’ How could diligence be gauged other than by noting what the officer actually did and how he did it? If an officer can complete traffic-based inquiries expeditiously, then that is the amount of ‘time reasonably required to complete [the stop’s] mission.’ [A] traffic stop ‘prolonged beyond’ that point is ‘unlawful.’ The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket but whether conducting the sniff ‘prolongs’—i.e., adds time to—‘the stop.’”
In his dissent, Justice Alito first argued that the Court should have avoided the constitutional question decided in the case because “the police officer did have reasonable suspicion [of illegal drug activity], and, as a result, the officer was justified in detaining the occupants for the short period of time (seven or eight minutes) that is at issue.”3 Then, he argued that the Court’s holding was baseless and impractical, suggesting that officers will delay completing the permitted activities of a traffic stop if they wish to conduct dog sniffs.
“The Court refuses to address the real Fourth Amendment question: whether the stop was unreasonably prolonged. Instead, the Court latches onto the fact that Officer Struble delivered the warning prior to the dog sniff and proclaims that the authority to detain based on a traffic stop ends when a citation or warning is handed over to the driver. The Court thus holds that the Fourth Amendment was violated, not because of the length of the stop, but simply because of the sequence in which Officer Struble chose to perform his tasks.”
“The rule that the Court adopts will do little good going forward. It is unlikely to have any appreciable effect on the length of future traffic stops. Most officers will learn the prescribed sequence of events even if they cannot fathom the reason for that requirement.”
The next case concerns whether during a Terry stop, police may demand that a suspect identify himself, under threat of prosecution if the suspect does not comply.
Supreme Court of the United States
Larry D. Hiibel v. Sixth Judicial District Court of Nevada
Decided June 21, 2004 – 542 U.S. 177
Justice KENNEDY delivered the opinion of the Court.
The petitioner was arrested and convicted for refusing to identify himself during a stop allowed by Terry v. Ohio. He challenges his conviction under the Fourth and Fifth Amendments to the United States Constitution, applicable to the States through the Fourteenth Amendment.
I
The sheriff’s department in Humboldt County, Nevada, received an afternoon telephone call reporting an assault. The caller reported seeing a man assault a woman in a red and silver GMC truck on Grass Valley Road. Deputy Sheriff Lee Dove was dispatched to investigate. When the officer arrived at the scene, he found the truck parked on the side of the road. A man was standing by the truck, and a young woman was sitting inside it. The officer observed skid marks in the gravel behind the vehicle, leading him to believe it had come to a sudden stop.
The officer approached the man and explained that he was investigating a report of a fight. The man appeared to be intoxicated. The officer asked him if he had “any identification on [him],” which we understand as a request to produce a driver’s license or some other form of written identification. The man refused and asked why the officer wanted to see identification. The officer responded that he was conducting an investigation and needed to see some identification. The unidentified man became agitated and insisted he had done nothing wrong. The officer explained that he wanted to find out who the man was and what he was doing there. After continued refusals to comply with the officer’s request for identification, the man began to taunt the officer by placing his hands behind his back and telling the officer to arrest him and take him to jail. This routine kept up for several minutes: The officer asked for identification 11 times and was refused each time. After warning the man that he would be arrested if he continued to refuse to comply, the officer placed him under arrest.
We now know that the man arrested on Grass Valley Road is Larry Dudley Hiibel. Hiibel was charged with “willfully resist[ing], delay[ing] or obstruct[ing] a public officer in discharging or attempting to discharge any legal duty of his office.” The government reasoned that Hiibel had obstructed the officer in carrying out his duties under § 171.123, a Nevada statute that defines the legal rights and duties of a police officer in the context of an investigative stop. Section 171.123 provides in relevant part:
“1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.
….
“3. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.”
Hiibel was tried in the Justice Court of Union Township. The court agreed that Hiibel’s refusal to identify himself as required by [Nevada Law] “obstructed and delayed Dove as a public officer in attempting to discharge his duty.” Hiibel was convicted and fined \$250. The Sixth Judicial District Court affirmed. On review the Supreme Court of Nevada rejected the Fourth Amendment challenge in a divided opinion. We granted certiorari.
II
NRS § 171.123(3) is an enactment sometimes referred to as a “stop and identify” statute. Stop and identify statutes often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior in the course of investigatory stops. The statutes vary from State to State, but all permit an officer to ask or require a suspect to disclose his identity.
Stop and identify statutes have their roots in early English vagrancy laws that required suspected vagrants to face arrest unless they gave “a good Account of themselves.” The Court has recognized [] constitutional limitations on the scope and operation of stop and identify statutes. In Brown v. Texas, [443 U.S. 47 (1979)] the Court invalidated a conviction for violating a Texas stop and identify statute on Fourth Amendment grounds. The Court ruled that the initial stop was not based on specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity. Four Terms later, the Court invalidated a modified stop and identify statute on vagueness grounds. Th[at] law [] required a suspect to give an officer “‘credible and reliable’” identification when asked to identify himself. The Court held that the statute was void because it provided no standard for determining what a suspect must do to comply with it, resulting in “‘virtually unrestrained power to arrest and charge persons with a violation.’”
The present case begins where our prior cases left off. Here there is no question that the initial stop was based on reasonable suspicion, satisfying the Fourth Amendment requirements noted in Brown. As we understand it, the statute does not require a suspect to give the officer a driver’s license or any other document. Provided that the suspect either states his name or communicates it to the officer by other means—a choice, we assume, that the suspect may make—the statute is satisfied and no violation occurs.
III
Hiibel argues that his conviction cannot stand because the officer’s conduct violated his Fourth Amendment rights. We disagree.
Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment. “[I]nterrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.” Beginning with Terry v. Ohio, the Court has recognized that a law enforcement officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. To ensure that the resulting seizure is constitutionally reasonable, a Terry stop must be limited. The officer’s action must be “‘justified at its inception, and … reasonably related in scope to the circumstances which justified the interference in the first place.’”
Our decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops. Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.
Although it is well established that an officer may ask a suspect to identify himself in the course of a Terry stop, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer. [T]he Fourth Amendment does not impose obligations on the citizen but instead provides rights against the government. As a result, the Fourth Amendment itself cannot require a suspect to answer questions. This case concerns a different issue, however. Here, the source of the legal obligation arises from Nevada state law, not the Fourth Amendment. Further, the statutory obligation does not go beyond answering an officer’s request to disclose a name.
The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop. The reasonableness of a seizure under the Fourth Amendment is determined “by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate government interests.” The Nevada statute satisfies that standard. The request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop. The threat of criminal sanction helps ensure that the request for identity does not become a legal nullity. On the other hand, the Nevada statute does not alter the nature of the stop itself: it does not change its duration or its location. A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.
It is clear in this case that the request for identification was “reasonably related in scope to the circumstances which justified” the stop. The officer’s request was a commonsense inquiry, not an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence. The stop, the request, and the State’s requirement of a response did not contravene the guarantees of the Fourth Amendment.
The judgment of the Nevada Supreme Court is [a]ffirmed.
Justice BREYER, with whom Justice SOUTER and Justice GINSBURG join, dissenting.
[T]his Court’s Fourth Amendment precedents make clear that police may conduct a Terry stop only within circumscribed limits. And one of those limits invalidates laws that compel responses to police questioning.
In Terry v. Ohio, the Court considered whether police, in the absence of probable cause, can stop, question, or frisk an individual at all. The Court recognized that the Fourth Amendment protects the “‘right of every individual to the possession and control of his own person.’” At the same time, it recognized that in certain circumstances, public safety might require a limited “seizure,” or stop, of an individual against his will. The Court consequently set forth conditions circumscribing when and how the police might conduct a Terry stop. They include what has become known as the “reasonable suspicion” standard. Justice White, in a separate concurring opinion, set forth further conditions. Justice White wrote: “Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.”
About 10 years later, the Court, in Brown v. Texas, held that police lacked “any reasonable suspicion” to detain the particular petitioner and require him to identify himself. Then, five years later, the Court wrote that an “officer may ask the [Terry] detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond.Berkemer v. McCarty, [468 U.S. 420 (1984)].
This lengthy history—of concurring opinions, of references, and of clear explicit statements—means that the Court’s statement in Berkemer, while technically dicta, is the kind of strong dicta that the legal community typically takes as a statement of the law. And that law has remained undisturbed for more than 20 years. There is no good reason now to reject this generation-old statement of the law.
The majority presents no evidence that the rule enunciated by Justice White and then by the Berkemer Court, which for nearly a generation has set forth a settled Terry stop condition, has significantly interfered with law enforcement. Nor has the majority presented any other convincing justification for change. I would not begin to erode a clear rule with special exceptions.
I consequently dissent.
Perceptions of Stop-and-Frisk
In Terry v. Ohio, the majority wrote, “When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” The Court held that the “reasonable suspicion” standard struck a sensible compromise between individual liberty and law enforcement realities.
In dissent, Justice Douglas warned, “To give the police greater power than a magistrate is to take a long step down the totalitarian path.” He argued that “if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.”
In the subsequent half century, the debate over stop-and-frisk tactics has remained heated. Opponents of the practice have argued that it visits humiliation on suspects for limited benefit and that police apply the tactic in a racially biased manner. For example, a federal court in New York found that the NYPD unconstitutionally focused disproportionately on Black and Hispanic suspects when stopping and frisking New Yorkers. See Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013). The Court of Appeals for the Second Circuit initially stayed the ruling of the district court pending appeal, but the city dropped the appeal after the election of a mayor who campaigned on a promise to comply with the district court. See J. David Goodman, “De Blasio Drops Challenge to Law on Police Profiling,” N.Y. Times (March 5, 2014).
The case in favor of stop-and-frisk was articulated by Heidi Grossman, New York City’s lead attorney in the Floyd trial. She said, “Our defense is that we go to where the crime is. And once we go to where the crime is, we have our police officers keep their eyes open, make observations; and only when they make observations, do they go and make reasonable suspicion stops.” She added that when police conduct stop-and-frisk in areas with high minority populations, “the majority of victims are black and Hispanics in the area. They are begging for help, and they want to be able to walk to and from work in a safe way. And so it is incumbent upon us to have our officers go out there and do their job, and keep the city safe.” SeeThe Argument for Stop-and-Frisk,” NPR (May 22, 2013).
For the perspective of some New Yorkers who have been repeatedly stopped and frisked and find the experience intensely unpleasant, see Julie Dressner & Edwin Martinez, Op-Doc: Season 1, “The Scars of Stop-and-Frisk,” N.Y. Times (June 12, 2012); Ross Tuttle & Erin Schneider, “Stopped-and-Frisked: ‘For Being a F**king Mutt,’” The Nation (Oct. 8, 2012) (secret recording by teen of himself being stopped, along with interview of anonymous police officer about department practices).
What are the best (most convincing) arguments in favor of allowing police to stop and frisk suspects without probable cause?
In our next chapter, we will study how the Court has defined “reasonable suspicion.” A more demanding definition—vaguely close to probable cause—would narrow the set of situations in which police may “stop and frisk” suspects. A less strict definition—something beyond a mere hunch but not much further—would give greater discretion to police. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.19%3A_Chapter_20_-_Stop_and_Frisk.txt |
In this chapter we review the Court’s efforts to define “reasonable suspicion,” which is required for stops and frisks under Terry v. Ohio. Critics of stop and frisk practices complain that the Court has set too low a standard, thereby allowing law enforcement to stop pretty much anyone, particularly in neighborhoods with high crime rates. Advocates for stop and frisk counter that a stricter standard would undermine effective policework.
Supreme Court of the United States
United States v. Ralph Arvizu
Decided Jan. 15, 2002 – 534 U.S. 266
Chief Justice REHNQUIST delivered the opinion of the [unanimous] Court.
Respondent Ralph Arvizu was stopped by a border patrol agent while driving on an unpaved road in a remote area of southeastern Arizona. A search of his vehicle turned up more than 100 pounds of marijuana.
On an afternoon in January 1998, Agent Clinton Stoddard was working at a border patrol checkpoint along U.S. Highway 191 approximately 30 miles north of Douglas, Arizona. Douglas has a population of about 13,000 and is situated on the United States-Mexico border in the southeastern part of the State. Only two highways lead north from Douglas. Highway 191 leads north to Interstate 10, which passes through Tucson and Phoenix. State Highway 80 heads northeast through less populated areas toward New Mexico, skirting south and east of the portion of the Coronado National Forest that lies approximately 20 miles northeast of Douglas.
The checkpoint is located at the intersection of 191 and Rucker Canyon Road, an unpaved east-west road that connects 191 and the Coronado National Forest. When the checkpoint is operational, border patrol agents stop the traffic on 191 as part of a coordinated effort to stem the flow of illegal immigration and smuggling across the international border. Agents use roving patrols to apprehend smugglers trying to circumvent the checkpoint by taking the backroads, including those roads through the sparsely populated area between Douglas and the national forest. Magnetic sensors, or “intrusion devices,” facilitate agents’ efforts in patrolling these areas. Directionally sensitive, the sensors signal the passage of traffic that would be consistent with smuggling activities.
Sensors are located along the only other northbound road from Douglas besides Highways 191 and 80: Leslie Canyon Road. Leslie Canyon Road runs roughly parallel to 191, about halfway between 191 and the border of the Coronado National Forest, and ends when it intersects Rucker Canyon Road. It is unpaved beyond the 10-mile stretch leading out of Douglas and is very rarely traveled except for use by local ranchers and forest service personnel. Smugglers commonly try to avoid the 191 checkpoint by heading west on Rucker Canyon Road from Leslie Canyon Road and thence to Kuykendall Cutoff Road, a primitive dirt road that leads north approximately 12 miles east of 191. From there, they can gain access to Tucson and Phoenix.
Around 2:15 p.m., Stoddard received a report via Douglas radio that a Leslie Canyon Road sensor had been triggered. This was significant to Stoddard for two reasons. First, it suggested to him that a vehicle might be trying to circumvent the checkpoint. Second, the timing coincided with the point when agents begin heading back to the checkpoint for a shift change, which leaves the area unpatrolled.
Stoddard drove eastbound on Rucker Canyon Road to investigate. As he did so, he received another radio report of sensor activity. It indicated that the vehicle that had triggered the first sensor was heading westbound on Rucker Canyon Road. He saw the dust trail of an approaching vehicle about a half mile away. Stoddard had not seen any other vehicles and, based on the timing, believed that this was the one that had tripped the sensors. He pulled off to the side of the road at a slight slant so he could get a good look at the oncoming vehicle as it passed by.
It was a minivan, a type of automobile that Stoddard knew smugglers used. As it approached, it slowed dramatically, from about 50-55 to 25-30 miles per hour. He saw five occupants inside. An adult man was driving, an adult woman sat in the front passenger seat, and three children were in the back. The driver appeared stiff and his posture very rigid. He did not look at Stoddard and seemed to be trying to pretend that Stoddard was not there. Stoddard thought this suspicious because in his experience on patrol most persons look over and see what is going on, and in that area most drivers give border patrol agents a friendly wave. Stoddard noticed that the knees of the two children sitting in the very back seat were unusually high, as if their feet were propped up on some cargo on the floor.
At that point, Stoddard decided to get a closer look, so he began to follow the vehicle as it continued westbound. Shortly thereafter, all of the children, though still facing forward, put their hands up at the same time and began to wave at Stoddard in an abnormal pattern. It looked to Stoddard as if the children were being instructed. Their odd waving continued on and off for about four to five minutes.
Several hundred feet before the Kuykendall Cutoff Road intersection, the driver signaled that he would turn. At one point, the driver turned the signal off, but just as he approached the intersection he put it back on and abruptly turned north onto Kuykendall. The turn was significant to Stoddard because it was made at the last place that would have allowed the minivan to avoid the checkpoint. Also, Kuykendall, though passable by a sedan or van, is rougher than either Rucker Canyon or Leslie Canyon Roads, and the normal traffic is four-wheel-drive vehicles. Stoddard did not recognize the minivan as part of the local traffic agents encounter on patrol, and he did not think it likely that the minivan was going to or coming from a picnic outing. He was not aware of any picnic grounds on Turkey Creek, which could be reached by following Kuykendall Cutoff all the way up. He knew of picnic grounds and a Boy Scout camp east of the intersection of Rucker Canyon and Leslie Canyon Roads, but the minivan had turned west at that intersection. And he had never seen anyone picnicking or sightseeing near where the first sensor went off.
Stoddard radioed for a registration check and learned that the minivan was registered to an address in Douglas that was four blocks north of the border in an area notorious for alien and narcotics smuggling. After receiving the information, Stoddard decided to make a vehicle stop. He approached the driver and learned that his name was Ralph Arvizu. Stoddard asked if respondent would mind if he looked inside and searched the vehicle. Respondent agreed, and Stoddard discovered marijuana in a black duffel bag under the feet of the two children in the back seat. Another bag containing marijuana was behind the rear seat. In all, the van contained 128.85 pounds of marijuana, worth an estimated \$99,080.
Respondent was charged with possession with intent to distribute marijuana. He moved to suppress the marijuana, arguing among other things that Stoddard did not have reasonable suspicion to stop the vehicle as required by the Fourth Amendment. After holding a hearing where Stoddard and respondent testified, the District Court for the District of Arizona ruled otherwise. The Court of Appeals for the Ninth Circuit reversed. We granted certiorari to review the decision of the Court of Appeals.
The Fourth Amendment prohibits “unreasonable searches and seizures” by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Because the “balance between the public interest and the individual’s right to personal security” tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity “‘may be afoot.’”
When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the “totality of the circumstances” of each case to see whether the detaining officer has a “particularized and objective basis” for suspecting legal wrongdoing. This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.” Although an officer’s reliance on a mere “‘hunch’” is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.
Our cases have recognized that the concept of reasonable suspicion is somewhat abstract. But we have deliberately avoided reducing it to “‘a neat set of legal rules.’” We think that the approach taken by the Court of Appeals here departs sharply from the teachings of these cases. [It] does not take into account the “totality of the circumstances,” as our cases have understood that phrase. The court appeared to believe that each observation by Stoddard that was by itself readily susceptible to an innocent explanation was entitled to “no weight.” Terry, however, precludes this sort of divide-and-conquer analysis.
[T]he Court of Appeals’ approach would seriously undercut the “totality of the circumstances” principle which governs the existence vel non of “reasonable suspicion.” Take, for example, the court’s positions that respondent’s deceleration could not be considered because “slowing down after spotting a law enforcement vehicle is an entirely normal response that is in no way indicative of criminal activity” and that his failure to acknowledge Stoddard’s presence provided no support because there were “no ‘special circumstances’ rendering ‘innocent avoidance … improbable.’” We think it quite reasonable that a driver’s slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one instance (such as a busy San Francisco highway) while quite unusual in another (such as a remote portion of rural southeastern Arizona). Stoddard was entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area’s inhabitants. To the extent that a totality of the circumstances approach may render appellate review less circumscribed by precedent than otherwise, it is the nature of the totality rule.
Having considered the totality of the circumstances and given due weight to the factual inferences drawn by the law enforcement officer and District Court Judge, we hold that Stoddard had reasonable suspicion to believe that respondent was engaged in illegal activity. It was reasonable for Stoddard to infer from his observations, his registration check, and his experience as a border patrol agent that respondent had set out from Douglas along a little-traveled route used by smugglers to avoid the 191 checkpoint. Stoddard’s knowledge further supported a commonsense inference that respondent intended to pass through the area at a time when officers would be leaving their backroads patrols to change shifts. The likelihood that respondent and his family were on a picnic outing was diminished by the fact that the minivan had turned away from the known recreational areas. Corroborating this inference was the fact that recreational areas farther to the north would have been easier to reach by taking 191, as opposed to the 40-to-50–mile trip on unpaved and primitive roads. The children’s elevated knees suggested the existence of concealed cargo in the passenger compartment. Finally, Stoddard’s assessment of respondent’s reactions upon seeing him and the children’s mechanical-like waving, which continued for a full four to five minutes, were entitled to some weight.
A determination that reasonable suspicion exists [] need not rule out the possibility of innocent conduct. Undoubtedly, each of these factors alone is susceptible of innocent explanation, and some factors are more probative than others. Taken together, we believe they sufficed to form a particularized and objective basis for Stoddard’s stopping the vehicle, making the stop reasonable within the meaning of the Fourth Amendment.
The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
* * *
In California v. Hodari D. (Chapter 19), the majority speculated in a footnote whether “it would be unreasonable to stop, for brief inquiry, young men who scatter in panic upon the mere sighting of the police,” and the dissent retorted that innocent persons might flee police for a variety of reasons. Because the question was not before the Court, the Justices did not decide whether flight from police was sufficiently suspicious to justify—by itself—a Terry stop. In the next case, the Court considered the merits of the question.
Supreme Court of the United States
Illinois v. William aka Sam Wardlow
Decided Jan. 12, 2000 – 528 U.S. 119
Chief Justice REHNQUIST delivered the opinion of the Court.
Respondent Wardlow fled upon seeing police officers patrolling an area known for heavy narcotics trafficking. Two of the officers caught up with him, stopped him and conducted a protective patdown search for weapons. Discovering a .38-caliber handgun, the officers arrested Wardlow. We hold that the officers’ stop did not violate the Fourth Amendment to the United States Constitution.
On September 9, 1995, Officers Nolan and Harvey were working as uniformed officers in the special operations section of the Chicago Police Department. The officers were driving the last car of a four car caravan converging on an area known for heavy narcotics trafficking in order to investigate drug transactions. The officers were traveling together because they expected to find a crowd of people in the area, including lookouts and customers.
As the caravan passed 4035 West Van Buren, Officer Nolan observed respondent Wardlow standing next to the building holding an opaque bag. Respondent looked in the direction of the officers and fled. Nolan and Harvey turned their car southbound, watched him as he ran through the gangway and an alley, and eventually cornered him on the street. Nolan then exited his car and stopped respondent. He immediately conducted a protective patdown search for weapons because in his experience it was common for there to be weapons in the near vicinity of narcotics transactions. During the frisk, Officer Nolan squeezed the bag respondent was carrying and felt a heavy, hard object similar to the shape of a gun. The officer then opened the bag and discovered a .38-caliber handgun with five live rounds of ammunition. The officers arrested Wardlow.
The Illinois trial court denied respondent’s motion to suppress, finding the gun was recovered during a lawful stop and frisk. The Illinois Appellate Court reversed Wardlow’s conviction, concluding that the gun should have been suppressed. The Illinois Supreme Court held that the stop and subsequent arrest violated the Fourth Amendment. We granted certiorari and now reverse.
This case, involving a brief encounter between a citizen and a police officer on a public street, is governed by the analysis we first applied in Terry. In Terry, we held that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. While “reasonable suspicion” is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. The officer must be able to articulate more than an “inchoate and unparticularized suspicion or ‘hunch’” of criminal activity.
Nolan and Harvey were among eight officers in a four-car caravan that was converging on an area known for heavy narcotics trafficking, and the officers anticipated encountering a large number of people in the area, including drug customers and individuals serving as lookouts. It was in this context that Officer Nolan decided to investigate Wardlow after observing him flee. An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a “high crime area” among the relevant contextual considerations in a Terry analysis.
In this case, moreover, it was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion, but his unprovoked flight upon noticing the police. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. We conclude Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further.
Such a holding is entirely consistent with our decision in Florida v. Royer, [460 U.S. 491 (1983)] where we held that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business. And any “refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not “going about one’s business”; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.
Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent. The Terry stop is a far more minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way. But in this case the officers found respondent in possession of a handgun, and arrested him for violation of an Illinois firearms statute. No question of the propriety of the arrest itself is before us.
The judgment of the Supreme Court of Illinois is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
Justice STEVENS, with whom Justice SOUTER, Justice GINSBURG, and Justice BREYER join, concurring in part and dissenting in part.
[The dissent agreed with the majority that flight from police could sometimes create cause for suspicion and thereby “by itself, be sufficient to justify a temporary investigative stop of the kind authorized by Terry.” It agreed too that the Court was correct in not “authorizing the temporary detention of anyone who flees at the mere sight of a police officer.” In other words, sometimes flight alone justifies a Terry stop, and sometimes it does not. “Given the diversity and frequency of possible motivations for flight, it would be profoundly unwise to endorse either per se rule.” The dissent differed from the majority in its discussion of why innocent persons might flee from officers:]
Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer’s sudden presence. For such a person, unprovoked flight is neither “aberrant” nor “abnormal.” Moreover, these concerns and fears are known to the police officers themselves, and are validated by law enforcement investigations into their own practices. Accordingly, the evidence supporting the reasonableness of these beliefs is too pervasive to be dismissed as random or rare, and too persuasive to be disparaged as inconclusive or insufficient.
[The dissent quoted from Alberty v. United States, 162 U.S. 499, 511 (1896), as follows:]
“[I]t is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that ‘the wicked flee when no man pursueth, but the righteous are as bold as a lion.’ Innocent men sometimes hesitate to confront a jury—not necessarily because they fear that the jury will not protect them, but because they do not wish their names to appear in connection with criminal acts, are humiliated at being obliged to incur the popular odium of an arrest and trial, or because they do not wish to be put to the annoyance or expense of defending themselves.”
[The dissent then concluded “that in this case the brief testimony of the officer who seized respondent does not justify the conclusion that he had reasonable suspicion to make the stop.” The dissent argued that the officer’s testimony was vague and could not even demonstrate that Wardlow’s “flight was related to his expectation of police focus on him.”]
Notes, Comments, and Questions
The Court in Wardlow announced that “unprovoked flight” in a “high crime area”—particularly “an area of heavy narcotics trafficking”—justifies a Terry stop. It is not certain what other factors, when combined with flight, are sufficient to constitute reasonable suspicion. It seems likely, however, that once flight is part of the analysis, not much additional ground for suspicion is needed to give officers discretion to stop a suspect.
What guidance does the Court give on what a “high-crime area” is? What comes to your mind as you think of high-crime areas? Would official statistics (for example, records of arrests organized by neighborhood) provide an accurate picture of which neighborhoods have the most crime? How do race and poverty play into our notions of high crime areas? Is a fraternity house (or a neighborhood of such houses, nicknamed “Greektown”) a high-crime area? Why or why not?
Consider a college student fleeing a police officer who arrives at a fraternity party in response to a noise complaint. May the officer chase the student down and conduct a Terry stop? Why or why not?
Now imagine that same college student is walking in a high-poverty, primarily minority neighborhood in the middle of an afternoon. He sees two police officers walking toward him, and he runs in the other direction. Does this conduct justify Terry stop? Why or why not?
As students have likely already noticed, a great deal of Fourth Amendment cases result from enforcement of laws banning the possession, manufacture, and sale of certain drugs. Because police spend substantial time on drug enforcement, officers have come to recognize common characteristics and behaviors of persons involved in the drug trade. The next case concerns the relevance of such observations to a finding of reasonable suspicion.
Supreme Court of the United States
United States v. Andrew Sokolow
Decided April 3, 1989 – 490 U.S. 1
Chief Justice REHNQUIST delivered the opinion of the Court.
Respondent Andrew Sokolow was stopped by Drug Enforcement Administration (DEA) agents upon his arrival at Honolulu International Airport. The agents found 1,063 grams of cocaine in his carry-on luggage. When respondent was stopped, the agents knew, inter alia, that (1) he paid \$2,100 for two airplane tickets from a roll of \$20 bills; (2) he traveled under a name that did not match the name under which his telephone number was listed; (3) his original destination was Miami, a source city for illicit drugs; (4) he stayed in Miami for only 48 hours, even though a round-trip flight from Honolulu to Miami takes 20 hours; (5) he appeared nervous during his trip; and (6) he checked none of his luggage. A divided panel of the United States Court of Appeals for the Ninth Circuit held that the DEA agents did not have a reasonable suspicion to stop respondent, as required by the Fourth Amendment. We take the contrary view.
This case involves a typical attempt to smuggle drugs through one of the Nation’s airports. On a Sunday in July 1984, respondent went to the United Airlines ticket counter at Honolulu Airport, where he purchased two round-trip tickets for a flight to Miami leaving later that day. The tickets were purchased in the names of “Andrew Kray” and “Janet Norian” and had open return dates. Respondent paid \$2,100 for the tickets from a large roll of \$20 bills, which appeared to contain a total of \$4,000. He also gave the ticket agent his home telephone number. The ticket agent noticed that respondent seemed nervous; he was about 25 years old; he was dressed in a black jumpsuit and wore gold jewelry; and he was accompanied by a woman, who turned out to be Janet Norian. Neither respondent nor his companion checked any of their four pieces of luggage.
After the couple left for their flight, the ticket agent informed Officer John McCarthy of the Honolulu Police Department of respondent’s cash purchase of tickets to Miami. Officer McCarthy determined that the telephone number respondent gave to the ticket agent was subscribed to a “Karl Herman,” who resided at 348-A Royal Hawaiian Avenue in Honolulu. Unbeknownst to McCarthy (and later to the DEA agents), respondent was Herman’s roommate. The ticket agent identified respondent’s voice on the answering machine at Herman’s number. Officer McCarthy was unable to find any listing under the name “Andrew Kray” in Hawaii. McCarthy subsequently learned that return reservations from Miami to Honolulu had been made in the names of Kray and Norian, with their arrival scheduled for July 25, three days after respondent and his companion had left. He also learned that Kray and Norian were scheduled to make stopovers in Denver and Los Angeles.
On July 25, during the stopover in Los Angeles, DEA agents identified respondent. He “appeared to be very nervous and was looking all around the waiting area.” Later that day, at 6:30 p.m., respondent and Norian arrived in Honolulu. As before, they had not checked their luggage. Respondent was still wearing a black jumpsuit and gold jewelry. The couple proceeded directly to the street and tried to hail a cab, where Agent Richard Kempshall and three other DEA agents approached them. Kempshall displayed his credentials, grabbed respondent by the arm, and moved him back onto the sidewalk. Kempshall asked respondent for his airline ticket and identification; respondent said that he had neither. He told the agents that his name was “Sokolow,” but that he was traveling under his mother’s maiden name, “Kray.”
Respondent and Norian were escorted to the DEA office at the airport. There, the couple’s luggage was examined by “Donker,” a narcotics detector dog, which alerted on respondent’s brown shoulder bag. The agents arrested respondent. He was advised of his constitutional rights and declined to make any statements. The agents obtained a warrant to search the shoulder bag. They found no illicit drugs, but the bag did contain several suspicious documents indicating respondent’s involvement in drug trafficking. The agents had Donker reexamine the remaining luggage, and this time the dog alerted on a medium-sized Louis Vuitton bag. By now, it was 9:30 p.m., too late for the agents to obtain a second warrant. They allowed respondent to leave for the night, but kept his luggage. The next morning, after a second dog confirmed Donker’s alert, the agents obtained a warrant and found 1,063 grams of cocaine inside the bag.
Respondent was indicted for possession with the intent to distribute cocaine. The United States District Court for Hawaii denied his motion to suppress the cocaine and other evidence seized from his luggage. Respondent then entered a conditional plea of guilty to the offense charged.
The United States Court of Appeals for the Ninth Circuit reversed respondent’s conviction by a divided vote. We granted certiorari to review the decision of the Court of Appeals. We now reverse.
The Court of Appeals held that the DEA agents seized respondent when they grabbed him by the arm and moved him back onto the sidewalk. The Government does not challenge that conclusion, and we assume—without deciding—that a stop occurred here. Our decision, then, turns on whether the agents had a reasonable suspicion that respondent was engaged in wrongdoing when they encountered him on the sidewalk.
The concept of reasonable suspicion, like probable cause, is not “readily, or even usefully, reduced to a neat set of legal rules.” We think the Court of Appeals’ effort to refine and elaborate the requirements of “reasonable suspicion” in this case creates unnecessary difficulty in dealing with one of the relatively simple concepts embodied in the Fourth Amendment. In evaluating the validity of a stop such as this, we must consider “the totality of the circumstances—the whole picture.”
The rule enunciated by the Court of Appeals, in which evidence available to an officer is divided into evidence of “ongoing criminal behavior,” on the one hand, and “probabilistic” evidence, on the other, is not in keeping with the [] statements from our decisions. It also seems to us to draw a sharp line between types of evidence, the probative value of which varies only in degree. The Court of Appeals classified evidence of traveling under an alias, or evidence that the suspect took an evasive or erratic path through an airport, as meeting the test for showing “ongoing criminal activity.” But certainly instances are conceivable in which traveling under an alias would not reflect ongoing criminal activity: for example, a person who wished to travel to a hospital or clinic for an operation and wished to conceal that fact. One taking an evasive path through an airport might be seeking to avoid a confrontation with an angry acquaintance or with a creditor. This is not to say that each of these types of evidence is not highly probative, but they do not have the sort of ironclad significance attributed to them by the Court of Appeals.
On the other hand, the factors in this case that the Court of Appeals treated as merely “probabilistic” also have probative significance. Paying \$2,100 in cash for two airplane tickets is out of the ordinary, and it is even more out of the ordinary to pay that sum from a roll of \$20 bills containing nearly twice that amount of cash. Most business travelers, we feel confident, purchase airline tickets by credit card or check so as to have a record for tax or business purposes, and few vacationers carry with them thousands of dollars in \$20 bills. We also think the agents had a reasonable ground to believe that respondent was traveling under an alias; the evidence was by no means conclusive, but it was sufficient to warrant consideration. While a trip from Honolulu to Miami, standing alone, is not a cause for any sort of suspicion, here there was more: surely few residents of Honolulu travel from that city for 20 hours to spend 48 hours in Miami during the month of July. Any one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion.
We do not agree with respondent that our analysis is somehow changed by the agents’ belief that his behavior was consistent with one of the DEA’s “drug courier profiles.” A court sitting to determine the existence of reasonable suspicion must require the agent to articulate the factors leading to that conclusion, but the fact that these factors may be set forth in a “profile” does not somehow detract from their evidentiary significance as seen by a trained agent.
We hold that the agents had a reasonable basis to suspect that respondent was transporting illegal drugs on these facts. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with our decision.
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
Because the strongest advocates of Fourth Amendment rights are frequently criminals, it is easy to forget that our interpretations of such rights apply to the innocent and the guilty alike. In the present case, the chain of events set in motion when respondent Andrew Sokolow was stopped by Drug Enforcement Administration (DEA) agents at Honolulu International Airport led to the discovery of cocaine and, ultimately, to Sokolow’s conviction for drug trafficking. But in sustaining this conviction on the ground that the agents reasonably suspected Sokolow of ongoing criminal activity, the Court diminishes the rights of all citizens “to be secure in their persons,” as they traverse the Nation’s airports. Finding this result constitutionally impermissible, I dissent.
The Fourth Amendment cabins government’s authority to intrude on personal privacy and security by requiring that searches and seizures usually be supported by a showing of probable cause. The reasonable-suspicion standard is a derivation of the probable-cause command, applicable only to those brief detentions which fall short of being full-scale searches and seizures and which are necessitated by law enforcement exigencies such as the need to stop ongoing crimes, to prevent imminent crimes, and to protect law enforcement officers in highly charged situations. By requiring reasonable suspicion as a prerequisite to such seizures, the Fourth Amendment protects innocent persons from being subjected to “overbearing or harassing” police conduct carried out solely on the basis of imprecise stereotypes of what criminals look like, or on the basis of irrelevant personal characteristics such as race.
To deter such egregious police behavior, we have held that a suspicion is not reasonable unless officers have based it on “specific and articulable facts.” It is not enough to suspect that an individual has committed crimes in the past, harbors unconsummated criminal designs, or has the propensity to commit crimes. On the contrary, before detaining an individual, law enforcement officers must reasonably suspect that he is engaged in, or poised to commit, a criminal act at that moment.
In my view, a law enforcement officer’s mechanistic application of a formula of personal and behavioral traits in deciding whom to detain can only dull the officer’s ability and determination to make sensitive and fact-specific inferences “in light of his experience.” Reflexive reliance on a profile of drug courier characteristics runs a far greater risk than does ordinary, case-by-case police work of subjecting innocent individuals to unwarranted police harassment and detention. This risk is enhanced by the profile’s “chameleon-like way of adapting to any particular set of observations.” In asserting that it is not “somehow” relevant that the agents who stopped Sokolow did so in reliance on a prefabricated profile of criminal characteristics, the majority thus ducks serious issues relating to a questionable law enforcement practice, to address the validity of which we granted certiorari in this case.
* * *
Reasonable Suspicion Based on Tips
Police rely on information volunteered by persons outside of law enforcement to conduct investigations. Witnesses to crimes, suspects themselves, and others willing to provide relevant information to help officers do their work. The Court has decided a handful of cases concerning how much a “tip” from an informant contributes to a finding of reasonable suspicion.
Supreme Court of the United States
Alabama v. Vanessa Rose White
Decided June 11, 1990 – 496 U.S. 325
Justice WHITE delivered the opinion of the Court.
Based on an anonymous telephone tip, police stopped respondent’s vehicle. A consensual search of the car revealed drugs. The issue is whether the tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop. We hold that it did.
On April 22, 1987, at approximately 3 p.m., Corporal B.H. Davis of the Montgomery Police Department received a telephone call from an anonymous person, stating that Vanessa White would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey’s Motel, and that she would be in possession of about an ounce of cocaine inside a brown attaché case. Corporal Davis and his partner, Corporal P. A. Reynolds, proceeded to the Lynwood Terrace Apartments. The officers saw a brown Plymouth station wagon with a broken right taillight in the parking lot in front of the 235 building. The officers observed respondent leave the 235 building, carrying nothing in her hands, and enter the station wagon. They followed the vehicle as it drove the most direct route to Dobey’s Motel. When the vehicle reached the Mobile Highway, on which Dobey’s Motel is located, Corporal Reynolds requested a patrol unit to stop the vehicle. The vehicle was stopped at approximately 4:18 p.m., just short of Dobey’s Motel. Corporal Davis asked respondent to step to the rear of her car, where he informed her that she had been stopped because she was suspected of carrying cocaine in the vehicle. He asked if they could look for cocaine, and respondent said they could look. The officers found a locked brown attaché case in the car, and, upon request, respondent provided the combination to the lock. The officers found marijuana in the attaché case and placed respondent under arrest. During processing at the station, the officers found three milligrams of cocaine in respondent’s purse.
Respondent was charged in Montgomery County Court with possession of marijuana and possession of cocaine. The trial court denied respondent’s motion to suppress, and she pleaded guilty to the charges, reserving the right to appeal the denial of her suppression motion. The Court of Criminal Appeals of Alabama concluded that respondent’s motion to dismiss should have been granted and reversed her conviction. The Supreme Court of Alabama denied the State’s petition for writ of certiorari. [W]e granted the State’s petition for certiorari. We now reverse.
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the “totality of the circumstances—the whole picture” that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable. The [Illinois v.] Gates Court applied its totality-of-the-circumstances approach in this manner, taking into account the facts known to the officers from personal observation, and giving the anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work. The same approach applies in the reasonable-suspicion context, the only difference being the level of suspicion that must be established. Contrary to the court below, we conclude that when the officers stopped respondent, the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that respondent was engaged in criminal activity and that the investigative stop therefore did not violate the Fourth Amendment.
It is true that not every detail mentioned by the tipster was verified, such as the name of the woman leaving the building or the precise apartment from which she left; but the officers did corroborate that a woman left the 235 building and got into the particular vehicle that was described by the caller. With respect to the time of departure predicted by the informant, Corporal Davis testified that the caller gave a particular time when the woman would be leaving, but he did not state what that time was. He did testify that, after the call, he and his partner proceeded to the Lynwood Terrace Apartments to put the 235 building under surveillance. Given the fact that the officers proceeded to the indicated address immediately after the call and that respondent emerged not too long thereafter, it appears from the record before us that respondent’s departure from the building was within the timeframe predicted by the caller. As for the caller’s prediction of respondent’s destination, it is true that the officers stopped her just short of Dobey’s Motel and did not know whether she would have pulled in or continued past it. But given that the 4-mile route driven by respondent was the most direct route possible to Dobey’s Motel but nevertheless involved several turns, we think respondent’s destination was significantly corroborated.
The Court’s opinion in Gates gave credit to the proposition that because an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity. Thus, it is not unreasonable to conclude in this case that the independent corroboration by the police of significant aspects of the informer’s predictions imparted some degree of reliability to the other allegations made by the caller.
We think it also important that, as in Gates, “the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.” The fact that the officers found a car precisely matching the caller’s description in front of the 235 building is an example of the former. Anyone could have “predicted” that fact because it was a condition presumably existing at the time of the call. What was important was the caller’s ability to predict respondent’s future behavior, because it demonstrated inside information—a special familiarity with respondent’s affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey’s Motel. Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities. When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.
Although it is a close case, we conclude that under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of respondent’s car. We therefore reverse the judgment of the Court of Criminal Appeals of Alabama and remand the case for further proceedings not inconsistent with this opinion.
Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.
Millions of people leave their apartments at about the same time every day carrying an attaché case and heading for a destination known to their neighbors. Usually, however, the neighbors do not know what the briefcase contains. An anonymous neighbor’s prediction about somebody’s time of departure and probable destination is anything but a reliable basis for assuming that the commuter is in possession of an illegal substance—particularly when the person is not even carrying the attaché case described by the tipster.
The record in this case does not tell us how often respondent drove from the Lynwood Terrace Apartments to Dobey’s Motel; for all we know, she may have been a room clerk or telephone operator working the evening shift. It does not tell us whether Officer Davis made any effort to ascertain the informer’s identity, his reason for calling, or the basis of his prediction about respondent’s destination. Indeed, for all that this record tells us, the tipster may well have been another police officer who had a “hunch” that respondent might have cocaine in her attaché case.
Anybody with enough knowledge about a given person to make her the target of a prank, or to harbor a grudge against her, will certainly be able to formulate a tip about her like the one predicting Vanessa White’s excursion. In addition, under the Court’s holding, every citizen is subject to being seized and questioned by any officer who is prepared to testify that the warrantless stop was based on an anonymous tip predicting whatever conduct the officer just observed. Fortunately, the vast majority of those in our law enforcement community would not adopt such a practice. But the Fourth Amendment was intended to protect the citizen from the overzealous and unscrupulous officer as well as from those who are conscientious and truthful. This decision makes a mockery of that protection.
I respectfully dissent.
* * *
The stop in White was made upon reasonable suspicion; then the suspect consented to the automobile search. Without consent, could the officer search the car? Why or why not?
In the next case, the Court distinguished Alabama v. White and found that the information provided by a tipster did not justify a Terry stop.
Supreme Court of the United States
Florida v. J.L.
Decided March 28, 2000 – 529 U.S. 266
Justice GINSBURG delivered the opinion of the [unanimous] Court.
The question presented in this case is whether an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a police officer’s stop and frisk of that person. We hold that it is not.
I
On October 13, 1995, an anonymous caller reported to the Miami-Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. So far as the record reveals, there is no audio recording of the tip, and nothing is known about the informant. Sometime after the police received the tip—the record does not say how long—two officers were instructed to respond. They arrived at the bus stop about six minutes later and saw three black males “just hanging out [there].” One of the three, respondent J.L., was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm, and J.L. made no threatening or otherwise unusual movements. One of the officers approached J.L., told him to put his hands up on the bus stop, frisked him, and seized a gun from J.L.’s pocket. The second officer frisked the other two individuals, against whom no allegations had been made, and found nothing.
J.L., who was at the time of the frisk “10 days shy of his 16th birth[day],” was charged under state law with carrying a concealed firearm without a license and possessing a firearm while under the age of 18. He moved to suppress the gun as the fruit of an unlawful search, and the trial court granted his motion. The intermediate appellate court reversed, but the Supreme Court of Florida quashed that decision and held the search invalid under the Fourth Amendment. We granted certiorari and now affirm the judgment of the Florida Supreme Court.
II
Our “stop and frisk” decisions begin with Terry v. Ohio. In the instant case, the officers’ suspicion that J.L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.” As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits “sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.” The question we here confront is whether the tip pointing to J.L. had those indicia of reliability.
The tip in the instant case lacked the moderate indicia of reliability present in [Alabama v.] White and essential to the Court’s decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility. That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L. If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line.
Florida contends that the tip was reliable because its description of the suspect’s visible attributes proved accurate: There really was a young black male wearing a plaid shirt at the bus stop. The United States as amicus curiae makes a similar argument, proposing that a stop and frisk should be permitted “when (1) an anonymous tip provides a description of a particular person at a particular location illegally carrying a concealed firearm, (2) police promptly verify the pertinent details of the tip except the existence of the firearm, and (3) there are no factors that cast doubt on the reliability of the tip….” These contentions misapprehend the reliability needed for a tip to justify a Terry stop.
An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.
A second major argument advanced by Florida and the United States as amicus is, in essence, that the standard Terry analysis should be modified to license a “firearm exception.” Under such an exception, a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. We decline to adopt this position.
Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions. Our decisions recognize the serious threat that armed criminals pose to public safety; Terry’s rule, which permits protective police searches on the basis of reasonable suspicion rather than demanding that officers meet the higher standard of probable cause, responds to this very concern. But an automatic firearm exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target’s unlawful carriage of a gun. Nor could one securely confine such an exception to allegations involving firearms. If police officers may properly conduct Terry frisks on the basis of bare-boned tips about guns, it would be reasonable to maintain [] that the police should similarly have discretion to frisk based on bare-boned tips about narcotics. As we clarified when we made indicia of reliability critical in Adams [v. Williams, 407 U.S.143 (1972),] and White, the Fourth Amendment is not so easily satisfied.
The facts of this case do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability. We do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk. Nor do we hold that public safety officials in quarters where the reasonable expectation of Fourth Amendment privacy is diminished, such as airports and schools, cannot conduct protective searches on the basis of information insufficient to justify searches elsewhere.
Finally, the requirement that an anonymous tip bear standard indicia of reliability in order to justify a stop in no way diminishes a police officer’s prerogative, in accord with Terry, to conduct a protective search of a person who has already been legitimately stopped. We speak in today’s decision only of cases in which the officer’s authority to make the initial stop is at issue. In that context, we hold that an anonymous tip lacking indicia of reliability of the kind contemplated in Adams and White does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm.
The judgment of the Florida Supreme Court is affirmed.
* * *
Look closely at the tips in White and J.L. Is there a good basis for distinguishing the two? Would you be able to predict when an officer should (and should not) form reasonable suspicion from a tip?
In 2014, the Court applied White and J.L. to a tip concerning a dangerous driver on a California highway. As the caustic dissent indicates, the Court’s decision in Navarette v. California has been widely read as lowering the amount of evidence necessary to support a finding of reasonable suspicion.
Supreme Court of the United States
Lorenzo Prado Navarette v. California
Decided April 22, 2014 – 572 U.S. 393
Justice THOMAS delivered the opinion of the Court.
After a 911 caller reported that a vehicle had run her off the road, a police officer located the vehicle she identified during the call and executed a traffic stop. We hold that the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated.
I
On August 23, 2008, a Mendocino County 911 dispatch team for the California Highway Patrol (CHP) received a call from another CHP dispatcher in neighboring Humboldt County. The Humboldt County dispatcher relayed a tip from a 911 caller, which the Mendocino County team recorded as follows: “‘Showing southbound Highway 1 at mile marker 88, Silver Ford 150 pickup. Plate of 8-David-94925. Ran the reporting party off the roadway and was last seen approximately five [minutes] ago.’” The Mendocino County team then broadcast that information to CHP officers at 3:47 p.m.
A CHP officer heading northbound toward the reported vehicle responded to the broadcast. At 4:00 p.m., the officer passed the truck near mile marker 69. At about 4:05 p.m., after making a U-turn, he pulled the truck over. A second officer, who had separately responded to the broadcast, also arrived on the scene. As the two officers approached the truck, they smelled marijuana. A search of the truck bed revealed 30 pounds of marijuana. The officers arrested the driver, petitioner Lorenzo Prado Navarette, and the passenger, petitioner José Prado Navarette.
Petitioners moved to suppress the evidence, arguing that the traffic stop violated the Fourth Amendment because the officer lacked reasonable suspicion of criminal activity. Both the magistrate who presided over the suppression hearing and the Superior Court disagreed. Petitioners pleaded guilty to transporting marijuana and were sentenced to 90 days in jail plus three years of probation.
The California Court of Appeal affirmed. The California Supreme Court denied review. We granted certiorari and now affirm.
II
The Fourth Amendment permits brief investigative stops—such as the traffic stop in this case—when a law enforcement officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” The “reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of information possessed by police and its degree of reliability.” The standard takes into account “the totality of the circumstances—the whole picture.” Although a mere “‘hunch’” does not create reasonable suspicion, the level of suspicion the standard requires is “considerably less than proof of wrongdoing by a preponderance of the evidence,” and “obviously less” than is necessary for probable cause.
These principles apply with full force to investigative stops based on information from anonymous tips. We have firmly rejected the argument “that reasonable cause for a[n investigative stop] can only be based on the officer’s personal observation, rather than on information supplied by another person.” Of course, “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.” That is because “ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations,” and an anonymous tipster’s veracity is “‘by hypothesis largely unknown, and unknowable.’” But under appropriate circumstances, an anonymous tip can demonstrate “sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.”
The initial question in this case is whether the 911 call was sufficiently reliable to credit the allegation that petitioners’ truck “ran the [caller] off the roadway.” Even assuming for present purposes that the 911 call was anonymous, we conclude that the call bore adequate indicia of reliability for the officer to credit the caller’s account. The officer was therefore justified in proceeding from the premise that the truck had, in fact, caused the caller’s car to be dangerously diverted from the highway.
By reporting that she had been run off the road by a specific vehicle—a silver Ford F-150 pickup, license plate 8D94925—the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving. That basis of knowledge lends significant support to the tip’s reliability. A driver’s claim that another vehicle ran her off the road [] necessarily implies that the informant knows the other car was driven dangerously.
There is also reason to think that the 911 caller in this case was telling the truth. Police confirmed the truck’s location near mile marker 69 (roughly 19 highway miles south of the location reported in the 911 call) at 4:00 p.m. (roughly 18 minutes after the 911 call). That timeline of events suggests that the caller reported the incident soon after she was run off the road. That sort of contemporaneous report has long been treated as especially reliable.
Another indicator of veracity is the caller’s use of the 911 emergency system. A 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity. As this case illustrates, 911 calls can be recorded, which provides victims with an opportunity to identify the false tipster’s voice and subject him to prosecution. The 911 system also permits law enforcement to verify important information about the caller. None of this is to suggest that tips in 911 calls are per se reliable. Given the foregoing technological and regulatory developments, however, a reasonable officer could conclude that a false tipster would think twice before using such a system. The caller’s use of the 911 system is therefore one of the relevant circumstances that, taken together, justified the officer’s reliance on the information reported in the 911 call.
Even a reliable tip will justify an investigative stop only if it creates reasonable suspicion that “criminal activity may be afoot.” We must therefore determine whether the 911 caller’s report of being run off the roadway created reasonable suspicion of an ongoing crime such as drunk driving as opposed to an isolated episode of past recklessness. We conclude that the behavior alleged by the 911 caller, “viewed from the standpoint of an objectively reasonable police officer, amount[s] to reasonable suspicion” of drunk driving. The stop was therefore proper.
Reasonable suspicion depends on “‘“the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”’” Under that commonsense approach, we can appropriately recognize certain driving behaviors as sound indicia of drunk driving. Indeed, the accumulated experience of thousands of officers suggests that these sorts of erratic behaviors are strongly correlated with drunk driving. Of course, not all traffic infractions imply intoxication. Unconfirmed reports of driving without a seatbelt or slightly over the speed limit, for example, are so tenuously connected to drunk driving that a stop on those grounds alone would be constitutionally suspect. But a reliable tip alleging the dangerous behaviors discussed above generally would justify a traffic stop on suspicion of drunk driving.
The 911 caller in this case reported more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous result of the driver’s conduct: running another car off the highway. That conduct bears too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of recklessness. Running another vehicle off the road suggests lane-positioning problems, decreased vigilance, impaired judgment, or some combination of those recognized drunk driving cues. And the experience of many officers suggests that a driver who almost strikes a vehicle or another object—the exact scenario that ordinarily causes “running [another vehicle] off the roadway”—is likely intoxicated. As a result, we cannot say that the officer acted unreasonably under these circumstances in stopping a driver whose alleged conduct was a significant indicator of drunk driving.
III
Like White, this is a “close case.” As in that case, the indicia of the 911 caller’s reliability here are stronger than those in J. L., where we held that a bare-bones tip was unreliable. Although the indicia present here are different from those we found sufficient in White, there is more than one way to demonstrate “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Under the totality of the circumstances, we find the indicia of reliability in this case sufficient to provide the officer with reasonable suspicion that the driver of the reported vehicle had run another vehicle off the road. That made it reasonable under the circumstances for the officer to execute a traffic stop. We accordingly affirm.
Justice SCALIA, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN join, dissenting.
Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers’, of a people secure from unreasonable searches and seizures. I would reverse the judgment of the Court of Appeal of California.
The California Highway Patrol in this case knew nothing about the tipster on whose word—and that alone—they seized Lorenzo and José Prado Navarette. They did not know her name. They did not know her phone number or address. They did not even know where she called from (she may have dialed in from a neighboring county).
The Court says that “[b]y reporting that she had been run off the road by a specific vehicle … the caller necessarily claimed eyewitness knowledge.” So what? The issue is not how she claimed to know, but whether what she claimed to know was true. The claim to “eyewitness knowledge” of being run off the road supports not at all its veracity; nor does the amazing, mystifying prediction (so far short of what existed in White) that the petitioners’ truck would be heading south on Highway 1.
All that has been said up to now assumes that the anonymous caller made, at least in effect, an accusation of drunken driving. But in fact she did not. She said that the petitioners’ truck “‘[r]an [me] off the roadway.’” That neither asserts that the driver was drunk nor even raises the likelihood that the driver was drunk. The most it conveys is that the truck did some apparently nontypical thing that forced the tipster off the roadway, whether partly or fully, temporarily or permanently. Who really knows what (if anything) happened? The truck might have swerved to avoid an animal, a pothole, or a jaywalking pedestrian.
But let us assume the worst of the many possibilities: that it was a careless, reckless, or even intentional maneuver that forced the tipster off the road. Lorenzo might have been distracted by his use of a hands-free cell phone or distracted by an intense sports argument with Jose. Or, indeed, he might have intentionally forced the tipster off the road because of some personal animus, or hostility to her “Make Love, Not War” bumper sticker. I fail to see how reasonable suspicion of a discrete instance of irregular or hazardous driving generates a reasonable suspicion of ongoing intoxicated driving. What proportion of the hundreds of thousands—perhaps millions—of careless, reckless, or intentional traffic violations committed each day is attributable to drunken drivers? I say 0.1 percent. I have no basis for that except my own guesswork. But unless the Court has some basis in reality to believe that the proportion is many orders of magnitude above that—say 1 in 10 or at least 1 in 20—it has no grounds for its unsupported assertion that the tipster’s report in this case gave rise to a reasonable suspicion of drunken driving.
Bear in mind that that is the only basis for the stop that has been asserted in this litigation. The stop required suspicion of an ongoing crime, not merely suspicion of having run someone off the road earlier. And driving while being a careless or reckless person, unlike driving while being a drunk person, is not an ongoing crime. In other words, in order to stop the petitioners the officers here not only had to assume without basis the accuracy of the anonymous accusation but also had to posit an unlikely reason (drunkenness) for the accused behavior.
In sum, at the moment the police spotted the truck, it was more than merely “possib[le]” that the petitioners were not committing an ongoing traffic crime. It was overwhelmingly likely that they were not.
It gets worse. Not only, it turns out, did the police have no good reason at first to believe that Lorenzo was driving drunk, they had very good reason at last to know that he was not. The Court concludes that the tip, plus confirmation of the truck’s location, produced reasonable suspicion that the truck not only had been but still was barreling dangerously and drunkenly down Highway 1. In fact, alas, it was not, and the officers knew it. They followed the truck for five minutes, presumably to see if it was being operated recklessly. And that was good police work. While the anonymous tip was not enough to support a stop for drunken driving, it was surely enough to counsel observation of the truck to see if it was driven by a drunken driver. But the pesky little detail left out of the Court’s reasonable-suspicion equation is that, for the five minutes that the truck was being followed (five minutes is a long time), Lorenzo’s driving was irreproachable. Had the officers witnessed the petitioners violate a single traffic law, they would have had cause to stop the truck, and this case would not be before us. And not only was the driving irreproachable, but the State offers no evidence to suggest that the petitioners even did anything suspicious, such as suddenly slowing down, pulling off to the side of the road, or turning somewhere to see whether they were being followed. Consequently, the tip’s suggestion of ongoing drunken driving (if it could be deemed to suggest that) not only went uncorroborated; it was affirmatively undermined.
A hypothetical variation on the facts of this case illustrates the point. Suppose an anonymous tipster reports that, while following near mile marker 88 a silver Ford F-150, license plate 8D949925, traveling southbound on Highway 1, she saw in the truck’s open cab several five-foot-tall stacks of what was unmistakably baled cannabis. Two minutes later, a highway patrolman spots the truck exactly where the tip suggested it would be, begins following it, but sees nothing in the truck’s cab. It is not enough to say that the officer’s observation merely failed to corroborate the tipster’s accusation. It is more precise to say that the officer’s observation discredited the informant’s accusation: The crime was supposedly occurring (and would continue to occur) in plain view, but the police saw nothing. Similarly, here, the crime supposedly suggested by the tip was ongoing intoxicated driving, the hallmarks of which are many, readily identifiable, and difficult to conceal. That the officers witnessed nary a minor traffic violation nor any other “sound indici[um] of drunk driving,” strongly suggests that the suspected crime was not occurring after all. The tip’s implication of continuing criminality, already weak, grew even weaker.
Resisting this line of reasoning, the Court curiously asserts that, since drunk drivers who see marked squad cars in their rearview mirrors may evade detection simply by driving “more careful[ly],” the “absence of additional suspicious conduct” is “hardly surprising” and thus largely irrelevant. Whether a drunk driver drives drunkenly, the Court seems to think, is up to him. That is not how I understand the influence of alcohol. I subscribe to the more traditional view that the dangers of intoxicated driving are the intoxicant’s impairing effects on the body—effects that no mere act of the will can resist. Consistent with this view, I take it as a fundamental premise of our intoxicated-driving laws that a driver soused enough to swerve once can be expected to swerve again—and soon. If he does not, and if the only evidence of his first episode of irregular driving is a mere inference from an uncorroborated, vague, and nameless tip, then the Fourth Amendment requires that he be left alone.
The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.
Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving. I respectfully dissent.
* * *
This concludes our review of the substantive search and seizure law that the Court has based upon the Fourth Amendment. We turn next to interrogations.
Fourth Amendment Flowchart Exercise
Flowcharts can help students visualize what they have learned. The goal is not to memorize the example chart presented here but instead to create a new chart that helps one to connect material from throughout the book. Your authors recommend that when students make their own charts, they add additional detail, such as case names or chapter numbers. For example, in the box asking whether there was a “search” or “seizure” at all, students might add information related to dog sniffs, aerial surveillance, the open fields doctrine, thermal imaging, garbage collection, and other items included in the early chapters of this book.
In the box asking if there was a valid warrant, students might add information related to the particularity requirement, as well as other sources of challenges to validity.
This chart focuses on the Fourth Amendment. Later in the book, a different sample chart focuses on the Miranda Rule.
These charts have two primary purposes. One is that when the charts are finished, they can serve as study aids. The other is that the creation of the charts—even if students never review them after finishing them—forces students to consider material more carefully than they otherwise might, which helps with learning and with retention of information. Also, fellow students can help spot misunderstandings that, were they not in a chart, would remain uncorrected. Study group members might wish to bring charts to share with classmates.
Note that the “Fourth Amendment violation” box asks students to consider what remedy might be available to the person whose rights were violated. A separate chart devoted to remedies (such as the exclusionary rule) would be worth creating after students cover that material. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/02%3A_The_Fourth_Amendment/2.20%3A_Chapter_21_-_Reasonable_Suspicion.txt |
INTERROGATIONS
Due Process and the Voluntariness Requirement
In this chapter we begin our study of how the Court has used the Constitution to regulate interrogations. Over the next several chapters, we will review three main lines of cases: (1) those decided under the Due Process Clauses of the Fourteenth Amendment and the Fifth Amendment, which the Court has used to require that only “voluntary” confessions be admitted as evidence, (2) those decided under the Self-Incrimination Clause of the Fifth Amendment, which the Court has used as the basis for the Miranda Rule, and (3) those decided under the Assistance of Counsel Clause of the Sixth Amendment, which the Court has used to prohibit certain questioning of defendants for whom the right to counsel has “attached.”
We begin with cases enforcing the voluntariness requirement under the Due Process Clauses. Our first case, Brown v. Mississippi, appeared in the reading for our first chapter and students may wish to quickly reread the facts of the case if they do not remember them. In that chapter, Brown was presented to provide background on why the Supreme Court might feel the need to supervise the criminal justice systems of the states. Now, we consider it again to learn the substantive law governing interrogations.
Supreme Court of the United States.
Ed Brown v. Mississippi
Decided Feb. 17, 1936 – 297 U.S. 278
Mr. Chief Justice HUGHES delivered the opinion of the [unanimous] Court.
The question in this case is whether convictions, which rest solely upon confessions shown to have been extorted by officers of the state by brutality and violence, are consistent with the due process of law required by the Fourteenth Amendment of the Constitution of the United States.
Petitioners were indicted for the murder of one Raymond Stewart, whose death occurred on March 30, 1934. They were indicted on April 4, 1934, and were then arraigned and pleaded not guilty. Counsel were appointed by the court to defend them. Trial was begun the next morning and was concluded on the following day, when they were found guilty and sentenced to death.
Aside from the confessions, there was no evidence sufficient to warrant the submission of the case to the jury. After a preliminary inquiry, testimony as to the confessions was received over the objection of defendants’ counsel. Defendants then testified that the confessions were false and had been procured by physical torture.
[D]efendants filed in the Supreme Court a “suggestion of error” explicitly challenging the proceedings of the trial, in the use of the confessions and with respect to the alleged denial of representation by counsel, as violating the due process clause of the Fourteenth Amendment of the Constitution of the United States. The state court entertained the suggestion of error, considered the federal question, and decided it against defendants’ contentions.
The grounds of the decision were (1) that immunity from self-incrimination is not essential to due process of law; and (2) that the failure of the trial court to exclude the confessions after the introduction of evidence showing their incompetency, in the absence of a request for such exclusion, did not deprive the defendants of life or liberty without due process of law; and that even if the trial court had erroneously overruled a motion to exclude the confessions, the ruling would have been mere error reversible on appeal, but not a violation of constitution right.
The state court said: “After the state closed its case on the merits, the appellants, for the first time, introduced evidence from which it appears that the confessions were not made voluntarily but were coerced.” There is no dispute as to the facts upon this point. It is sufficient to say that in pertinent respects the transcript reads more like pages torn from some medieval account than a record made within the confines of a modern civilization which aspires to an enlightened constitutional government.
[The Court then quoted portions of the state court dissent:]
“[T]he solemn farce of hearing the free and voluntary confessions was gone through with, and these two sheriffs and one other person then present were the three witnesses used in court to establish the so-called confessions, which were received by the court and admitted in evidence over the objections of the defendants duly entered of record as each of the said three witnesses delivered their alleged testimony. There was thus enough before the court when these confessions were first offered to make known to the court that they were not, beyond all reasonable doubt, free and voluntary; and the failure of the court then to exclude the confessions is sufficient to reverse the judgment, under every rule of procedure that has heretofore been prescribed, and hence it was not necessary subsequently to renew the objections by motion or otherwise.”
“The defendants were brought to the courthouse … and the so-called trial was opened, and was concluded on the next day, … and resulted in a pretended conviction with death sentences. The evidence upon which the conviction was obtained was the so-called confessions. Without this evidence, a peremptory instruction to find for the defendants would have been inescapable.”
[T]he trial [] is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence. The due process clause requires “that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.
In the instant case, the trial court was fully advised by the undisputed evidence of the way in which the confessions had been procured. The trial court knew that there was no other evidence upon which conviction and sentence could be based. Yet it proceeded to permit conviction and to pronounce sentence. The conviction and sentence were void for want of the essential elements of due process, and the proceeding thus vitiated could be challenged in any appropriate manner. It was challenged before the Supreme Court of the State by the express invocation of the Fourteenth Amendment. That court entertained the challenge, considered the federal question thus presented, but declined to enforce petitioners’ constitutional right. The court thus denied a federal right fully established and specially set up and claimed, and the judgment must be reversed.
* * *
The Court has stated that “when a confession challenged as involuntary is sought to be used against a criminal defendant at his trial … the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary.” Lego v. Twomey, 404 U.S. 477, 489 (1972); see also Bram v. United States, 168 U.S. 532, 555 (1897) (recalling with approval English precedent to the effect “that it was the duty of the prosecutor to satisfy the trial judge that the confession had not been obtained by improper means, and that, where it was impossible to collect from the proof whether such was the case or not, the confession ought not to be received”).
Unfortunately, while the facts in Brown v. Mississippi are horrific, it was not the only case in which the Court found it necessary to reverse a conviction based upon an involuntary confession. Indeed, in reciting the facts of the next case, the Court referred to “the usual pattern” of testimony concerning the treatment of a suspect.
Supreme Court of the United States
E.E. Ashcraft v. Tennessee
Decided May 1, 1944 – 322 U.S. 143
Mr. Justice BLACK delivered the opinion of the Court.
[Petitioner E.E. Ashcraft’s wife was found murdered. The state presented evidence that during interrogation, Ashcraft—a white man—suggested that John Ware—a Black man—was the killer and had acted alone. The state’s evidence also included a subsequent confession by Ashcraft that he hired Ware to kill Mrs. Ashcraft.]
We proceed therefore to consider the evidence relating to the circumstances out of which the alleged confession[] came.
The officers first talked to Ashcraft about 6 P.M. on the day of his wife’s murder as he was returning home from work. Informed by them of the tragedy, he was taken to an undertaking establishment to identify her body which previously had been identified only by a driver’s license. From there he was taken to the county jail where he conferred with the officers until about 2 A.M. No clues of ultimate value came from this conference, though it did result in the officers’ holding and interrogating the Ashcrafts’ maid and several of her friends. During the following week the officers made extensive investigations in Ashcraft’s neighborhood and elsewhere and further conferred with Ashcraft himself on several occasions, but none of these activities produced tangible evidence pointing to the identity of the murderer.
Then, early in the evening of Saturday, June 14, the officers came to Ashcraft’s home and “took him into custody.” In the words of the Tennessee Supreme Court, “They took him to an office or room on the northwest corner of the fifth Floor of the Shelby County jail. This office is equipped with all sorts of crime and detective devices such as a fingerprint outfit, cameras, high-powered lights, and such other devices as might be found in a homicide investigating office. … It appears that the officers placed Ashcraft at a table in this room on the fifth floor of the county jail with a light over his head and began to quiz him. They questioned him in relays until the following Monday morning, June 16, 1941, around nine-thirty or ten o’clock. It appears that Ashcraft from Saturday evening at seven o’clock until Monday morning at approximately nine-thirty never left this homicide room of the fifth floor.”
Testimony of the officers shows that the reason they questioned Ashcraft “in relays” was that they became so tired they were compelled to rest. But from 7:00 Saturday evening until 9:30 Monday morning Ashcraft had no rest. One officer did say that he gave the suspect a single five minutes respite, but except for this five minutes the procedure consisted of one continuous stream of questions.
As to what happened in the fifth-floor jail room during this thirty-six hour secret examination the testimony follows the usual pattern and is in hopeless conflict. Ashcraft swears that the first thing said to him when he was taken into custody was, “Why in hell did you kill your wife?”; that during the course of the examination he was threatened and abused in various ways; and that as the hours passed his eyes became blinded by a powerful electric light, his body became weary, and the strain on his nerves became unbearable. The officers, on the other hand, swear that throughout the questioning they were kind and considerate. They say that they did not accuse Ashcraft of the murder until four hours after he was brought to the jail building, though they freely admit that from that time on their barrage of questions was constantly directed at him on the assumption that he was the murderer. Together with other persons whom they brought in on Monday morning to witness the culmination of the thirty-six hour ordeal the officers declare that at that time Ashcraft was “cool”, “calm”, “collected,” “normal”; that his vision was unimpaired and his eyes not bloodshot; and that he showed no outward signs of being tired or sleepy.
As to whether Ashcraft actually confessed there is a similar conflict of testimony. Ashcraft maintains that although the officers incessantly attempted by various tactics of intimidation to entrap him into a confession, not once did he admit knowledge concerning or participation in the crime. And he specifically denies the officers’ statements that he accused Ware of the crime, insisting that in response to their questions he merely gave them the name of Ware as one of several men who occasionally had ridden with him to work. The officers’ version of what happened, however, is that about 11 P.M. on Sunday night, after twenty-eight hours’ constant questioning, Ashcraft made a statement that Ware had overpowered him at his home and abducted the deceased, and was probably the killer. About midnight the officers found Ware and took him into custody, and, according to their testimony, Ware made a self-incriminating statement as of early Monday morning, and at 5:40 A.M. signed by mark a written confession in which appeared the statement that Ashcraft had hired him to commit the murder. This alleged confession of Ware was read to Ashcraft about six o’clock Monday morning, whereupon Ashcraft is said substantially to have admitted its truth in a detailed statement taken down by a reporter. About 9:30 Monday morning a transcript of Ashcraft’s purported statement was read to him. The State’s position is that he affirmed its truth but refused to sign the transcript, saying that he first wanted to consult his lawyer. As to this latter 9:30 episode the officers’ testimony is reinforced by testimony of the several persons whom they brought in to witness the end of the examination.
In reaching our conclusion as to the validity of Ashcraft’s confession we do not resolve any of the disputed questions of fact relating to the details of what transpired within the confession chamber of the jail or whether Ashcraft actually did confess. Such disputes, we may say, are an inescapable consequence of secret inquisitorial practices. And always evidence concerning the inner details of secret inquisitions is weighted against an accused, particularly where, as here, he is charged with a brutal crime, or where, as in many other cases, his supposed offense bears relation to an unpopular economic, political, or religious cause.
Our conclusion is that if Ashcraft made a confession it was not voluntary but compelled. We reach this conclusion from facts which are not in dispute at all. Ashcraft, a citizen of excellent reputation, was taken into custody by police officers. Ten days’ examination of the Ashcrafts’ maid, and of several others, in jail where they were held, had revealed nothing whatever against Ashcraft. Inquiries among his neighbors and business associates likewise had failed to unearth one single tangible clue pointing to his guilt. For thirty-six hours after Ashcraft’s seizure during which period he was held incommunicado, without sleep or rest, relays of officers, experienced investigators, and highly trained lawyers questioned him without respite. From the beginning of the questioning at 7 o’clock on Saturday evening until 6 o’clock on Monday morning Ashcraft denied that he had anything to do with the murder of his wife. And at a hearing before a magistrate about 8:30 Monday morning Ashcraft pleaded not guilty to the charge of murder which the officers had sought to make him confess during the previous thirty-six hours.
We think a situation such as that here shown by uncontradicted evidence is so inherently coercive that its very existence is irreconcilable with the possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear. It is inconceivable that any court of justice in the land, conducted as our courts are, open to the public, would permit prosecutors serving in relays to keep a defendant witness under continuous cross examination for thirty-six hours without rest or sleep in an effort to extract a “voluntary” confession. Nor can we, consistently with Constitutional due process of law, hold voluntary a confession where prosecutors do the same thing away from the restraining influences of a public trial in an open court room.
* * *
As was true of Brown v. Mississippi and Tennessee v. Ashcraft, our next case not only has unpleasant facts, but also required the Supreme Court to overrule a state court of last resort which had affirmed a conviction.
Supreme Court of the United States
Frank Andrew Payne v. Arkansas
Decided May 19, 1958 – 356 U.S. 560
Mr. Justice WHITTAKER delivered the opinion of the Court.
Near 6:30 p.m. on October 4, 1955, J. M. Robertson, an elderly retail lumber dealer in the City of Pine Bluff, Arkansas, was found in his office dead or dying from crushing blows inflicted upon his head. More than \$450 was missing from the cash drawer. Petitioner, a 19-year-old [Black man] with a fifth-grade education,1 who had been employed by Robertson for several weeks, was suspected of the crime. He was interrogated that night at his home by the police, but they did not then arrest him. Near 11 a.m. the next day, October 5, he was arrested.
Petitioner was held incommunicado without any charge against him from the time of his arrest at 11 a.m. on October 5 until after his confession on the afternoon of October 7, without counsel, advisor or friend being permitted to see him. Members of his family who sought to see him were turned away, because the police did not “make it a practice of letting anyone talk to [prisoners] while they are being questioned.” Two of petitioner’s brothers and three of his nephews were, to his knowledge, brought by the police to the city jail and questioned during the evening of petitioner’s arrest, and one of his brothers was arrested and held in jail overnight. Petitioner asked permission to make a telephone call but his request was denied.
Petitioner was not given lunch after being lodged in the city jail on October 5, and missed the evening meal on that day because he was then being questioned in the office of the chief of police. Near 6:30 the next morning, October 6, he was taken by the police, without breakfast, and also without shoes or socks, on a trip to Little Rock, a distance of about 45 miles, for further questioning and a lie detector test, arriving there about 7:30 a.m. He was not given breakfast in that city, but was turned over to the state police who gave him a lie detector test and questioned him for an extended time not shown in the record. At about 1 p.m. that day he was given shoes and also two sandwiches—the first food he had received in more than 25 hours. He was returned to the city jail in Pine Bluff at about 6:30 that evening—too late for the evening meal—and placed in a cell on the second floor. The next morning, October 7, he was given breakfast—which, except for the two sandwiches he had been given at Little Rock at 1 p.m. the day before, was the only food he had received in more than 40 hours.
We come now to an even more vital matter. Petitioner testified, concerning the conduct that immediately induced his confession, as follows: “I was locked up upstairs and Chief Norman Young came up [about 1 p.m. on October 7] and told me that I had not told him all of the story—he said that there was 30 or 40 people outside that wanted to get me, and he said if I would come in and tell him the truth that he would probably keep them from coming in.” When again asked what the chief of police had said to him on that occasion petitioner testified: “Chief Norman Young said thirty or forty people were outside wanting to get in to me and he asked me if I wanted to make a confession he would try to keep them out.” The chief of police, on cross-examination, admitted that he had made the substance of that statement to petitioner, and had told him that he would be permitted to confess to the chief “in private.” In this setting, petitioner immediately agreed to make a statement to the chief. The chief then took petitioner to his private office, and almost immediately after arriving at that place there was a knock on the door. The chief opened the door and stepped outside, leaving the door ajar, and petitioner heard him say “‘He is fixing to confess now,’ and he would like to have me alone.” Petitioner did not know what persons or how many were outside the door. The chief re-entered his office and began questioning petitioner who orally confessed that he had committed the crime. Thereupon Sergeant Halsell of the State Police and Sheriff Norton were admitted to the room, and under questioning by Sergeant Halsell petitioner gave more details concerning the crime. Soon afterward a court reporter was called in and several businessmen were also admitted to the room. Sergeant Halsell then requisitioned petitioner and the questions and answers were taken by the reporter in shorthand. After being transcribed by the reporter, the typed transcription was returned to the room about 3 p.m. and was read and signed to petitioner and witnessed by the officers and businessmen referred to. Thus the “confession” was obtained.
That petitioner was not physically tortured affords no answer to the question whether the confession was coerced, for “[t]here is torture of mind as well as body; the will is as much affected by fear as by force. … A confession by which life becomes forfeit must be the expression of free choice.” The undisputed evidence in this case shows that petitioner, a mentally dull 19-year-old youth, (1) was arrested without a warrant, (2) was denied a hearing before a magistrate at which he would have been advised of his right to remain silent and of his right to counsel, as required by Arkansas statutes, (3) was not advised of his right to remain silent or of his right to counsel, (4) was held incommunicado for three days, without counsel, advisor or friend, and though members of his family tried to see him they were turned away, and he was refused permission to make even one telephone call, (5) was denied food for long periods, and, finally, (6) was told by the chief of police “that there would be 30 or 40 people there in a few minutes that wanted to get him,” which statement created such fear in petitioner as immediately produced the “confession.” It seems obvious from the totality of this course of conduct, and particularly the culminating threat of mob violence, that the confession was coerced and did not constitute an “expression of free choice,” and that its use before the jury, over petitioner’s objection, deprived him of “that fundamental fairness essential to the very concept of justice,” and, hence, denied him due process of law, guaranteed by the Fourteenth Amendment.
* * *
The next case demonstrates that coercive interrogations were by no means limited to the American South. Further, to find that a confession was not voluntary, the Court does not require evidence of physical mistreatment of a suspect.
Supreme Court of the United States
Vincent Joseph Spano v. New York
Decided June 22, 1959 – 360 U.S. 315
Mr. Chief Justice WARREN delivered the opinion of the Court.
This is another in the long line of cases presenting the question whether a confession was properly admitted into evidence under the Fourteenth Amendment. As in all such cases, we are forced to resolve a conflict between two fundamental interests of society; its interest in prompt and efficient law enforcement, and its interest in preventing the rights of its individual members from being abridged by unconstitutional methods of law enforcement. Because of the delicate nature of the constitutional determination which we must make, we cannot escape the responsibility of making our own examination of the record.
The State’s evidence reveals the following: Petitioner Vincent Joseph Spano is a derivative citizen of this country, having been born in Messina, Italy. He was 25 years old at the time of the shooting in question and had graduated from junior high school. He had a record of regular employment. The shooting took place on January 22, 1957.
On that day, petitioner was drinking in a bar. The decedent, a former professional boxer weighing almost 200 pounds who had fought in Madison Square Garden, took some of petitioner’s money from the bar. Petitioner followed him out of the bar to recover it. A fight ensued, with the decedent knocking petitioner down and then kicking him in the head three or four times. Shock from the force of these blows caused petitioner to vomit. After the bartender applied some ice to his head, petitioner left the bar, walked to his apartment, secured a gun, and walked eight or nine blocks to a candy store where the decedent was frequently to be found. He entered the store in which decedent, three friends of decedent, at least two of whom were ex-convicts, and a boy who was supervising the store were present. He fired five shots, two of which entered the decedent’s body, causing his death. The boy was the only eyewitness; the three friends of decedent did not see the person who fired the shot. Petitioner then disappeared for the next week or so.
On February 1, 1957, the Bronx County Grand Jury returned an indictment for first-degree murder against petitioner. Accordingly, a bench warrant was issued for his arrest, commanding that he be forthwith brought before the court to answer the indictment, or, if the court had adjourned for the term, that he be delivered into the custody of the Sheriff of Bronx County.
On February 3, 1957, petitioner called one Gaspar Bruno, a close friend of 8 or 10 years’ standing who had attended school with him. Bruno was a fledgling police officer, having at that time not yet finished attending police academy. According to Bruno’s testimony, petitioner told him “that he took a terrific beating, that the deceased hurt him real bad and he dropped him a couple of times and he was dazed; he didn’t know what he was doing and that he went and shot at him.” Petitioner told Bruno that he intended to get a lawyer and give himself up. Bruno relayed this information to his superiors.
The following day, February 4, at 7:10 p.m., petitioner, accompanied by counsel, surrendered himself to the authorities in front of the Bronx County Building, where both the office of the Assistant District Attorney who ultimately prosecuted his case and the court-room in which he was ultimately tried were located. His attorney had cautioned him to answer no questions, and left him in the custody of the officers. He was promptly taken to the office of the Assistant District Attorney and at 7:15 p.m. the questioning began, being conducted by Assistant District Attorney Goldsmith, Lt. Gannon, Detectives Farrell, Lehrer and Motta, and Sgt. Clarke. The record reveals that the questioning was both persistent and continuous. Petitioner, in accordance with his attorney’s instructions, steadfastly refused to answer. Detective Motta testified: “He refused to talk to me.” “He just looked up to the ceiling and refused to talk to me.” Detective Farrell testified:
“Q. And you started to interrogate him? A. That is right.
“Q. What did he say? A. He said ‘you would have to see my attorney. I tell you nothing but my name.’
“Q. Did you continue to examine him? A. Verbally, yes, sir.”
He asked one officer, Detective Ciccone, if he could speak to his attorney, but that request was denied. Detective Ciccone testified that he could not find the attorney’s name in the telephone book.2 He was given two sandwiches, coffee and cake at 11 p.m.
At 12:15 a.m. on the morning of February 5, after five hours of questioning in which it became evident that petitioner was following his attorney’s instructions, on the Assistant District Attorney’s orders petitioner was transferred to the 46th Squad, Ryer Avenue Police Station. The Assistant District Attorney also went to the police station and to some extent continued to participate in the interrogation. Petitioner arrived at 12:30 and questioning was resumed at 12:40. The character of the questioning is revealed by the testimony of Detective Farrell:
“Q. Who did you leave him in the room with? A. With Detective Lehrer and Sergeant Clarke came in and Mr. Goldsmith came in or Inspector Halk came in. It was back and forth. People just came in, spoke a few words to the defendant or they listened a few minutes and they left.”
But petitioner persisted in his refusal to answer, and again requested permission to see his attorney, this time from Detective Lehrer. His request was again denied.
It was then that those in charge of the investigation decided that petitioner’s close friend, Bruno, could be of use. He had been called out on the case around 10 or 11 p.m., although he was not connected with the 46th Squad or Precinct in any way. Although, in fact, his job was in no way threatened, Bruno was told to tell petitioner that petitioner’s telephone call had gotten him “in a lot of trouble,” and that he should seek to extract sympathy from petitioner for Bruno’s pregnant wife and three children. Bruno developed this theme with petitioner without success, and petitioner, also without success, again sought to see his attorney, a request which Bruno relayed unavailingly to his superiors. After this first session with petitioner, Bruno was again directed by Lt. Gannon to play on petitioner’s sympathies, but again no confession was forthcoming. But the Lieutenant a third time ordered Bruno falsely to importune his friend to confess but again petitioner clung to his attorney’s advice. Inevitably, in the fourth such session directed by the Lieutenant, lasting a full hour, petitioner succumbed to his friend’s prevarications and agreed to make a statement. Accordingly, at 3:25 a.m. the Assistant District Attorney, a stenographer, and several other law enforcement officials entered the room where petitioner was being questioned, and took his statement in question and answer form with the Assistant District Attorney asking the questions. The statement was completed at 4:05 a.m.
But this was not the end. At 4:30 a.m. three detectives took petitioner to Police Headquarters in Manhattan. On the way they attempted to find the bridge from which petitioner said he had thrown the murder weapon. They crossed the Triborough Bridge into Manhattan, arriving at Police Headquarters at 5 a.m., and left Manhattan for the Bronx at 5:40 a.m. via the Willis Avenue Bridge. When petitioner recognized neither bridge as the one from which he had thrown the weapon, they re-entered Manhattan via the Third Avenue Bridge, which petitioner stated was the right one, and then returned to the Bronx well after 6 a.m. During that trip the officers also elicited a statement from petitioner that the deceased was always “on [his] back,” “always pushing” him and that he was “not sorry” he had shot the deceased. All three detectives testified to that statement at the trial.
At the trial, the confession was introduced in evidence over appropriate objections. The jury was instructed that it could rely on it only if it was found to be voluntary. The jury returned a guilty verdict and petitioner was sentenced to death. The New York Court of Appeals affirmed the conviction over three dissents, and we granted certiorari to resolve the serious problem presented under the Fourteenth Amendment.
The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves. Accordingly, the actions of police in obtaining confessions have come under scrutiny in a long series of cases. Those cases suggest that in recent years law enforcement officials have become increasingly aware of the burden which they share, along with our courts, in protecting fundamental rights of our citizenry, including that portion of our citizenry suspected of crime. [A]s law enforcement officers become more responsible, and the methods used to extract confessions more sophisticated, our duty to enforce federal constitutional protections does not cease. It only becomes more difficult because of the more delicate judgments to be made. Our judgment here is that, on all the facts, this conviction cannot stand.
Petitioner was a foreign-born young man of 25 with no past history of law violation or of subjection to official interrogation, at least insofar as the record shows. He had progressed only one-half year into high school and the record indicates that he had a history of emotional instability. He did not make a narrative statement, but was subject to the leading questions of a skillful prosecutor in a question and answer confession. He was subjected to questioning not by a few men, but by many. They included Assistant District Attorney Goldsmith, one Hyland of the District Attorney’s Office, Deputy Inspector Halks, Lieutenant Gannon, Detective Ciccone, Detective Motta, Detective Lehrer, Detective Marshal, Detective Farrell, Detective Leira, Detective Murphy, Detective Murtha, Sergeant Clarke, Patrolman Bruno and Stenographer Baldwin. All played some part, and the effect of such massive official interrogation must have been felt. Petitioner was questioned for virtually eight straight hours before he confessed, with his only respite being a transfer to an arena presumably considered more appropriate by the police for the task at hand. Nor was the questioning conducted during normal business hours, but began in early evening, continued into the night, and did not bear fruition until the not-too-early morning. The drama was not played out, with the final admissions obtained, until almost sunrise. In such circumstances slowly mounting fatigue does, and is calculated to, play its part. The questioners persisted in the face of his repeated refusals to answer on the advice of his attorney, and they ignored his reasonable requests to contact the local attorney whom he had already retained and who had personally delivered him into the custody of these officers in obedience to the bench warrant.
The use of Bruno, characterized in this Court by counsel for the State as a “childhood friend” of petitioner’s, is another factor which deserves mention in the totality of the situation. Bruno’s was the one face visible to petitioner in which he could put some trust. There was a bond of friendship between them going back a decade into adolescence. It was with this material that the officers felt that they could overcome petitioner’s will. They instructed Bruno falsely to state that petitioner’s telephone call had gotten him into trouble, that his job was in jeopardy, and that loss of his job would be disastrous to his three children, his wife and his unborn child. And Bruno played this part of a worried father, harried by his superiors, in not one, but four different acts, the final one lasting an hour. Petitioner was apparently unaware of John Gay’s famous couplet: “An open foe may prove a curse, But a pretended friend is worse,” and he yielded to his false friend’s entreaties.
We conclude that petitioner’s will was overborne by official pressure, fatigue and sympathy falsely aroused after considering all the facts in their post-indictment setting. Here a grand jury had already found sufficient cause to require petitioner to face trial on a charge of first-degree murder, and the police had an eyewitness to the shooting. The police were not therefore merely trying to solve a crime, or even to absolve a suspect. They were rather concerned primarily with securing a statement from defendant on which they could convict him. The undeviating intent of the officers to extract a confession from petitioner is therefore patent. When such an intent is shown, this Court has held that the confession obtained must be examined with the most careful scrutiny, and has reversed a conviction on facts less compelling than these. Accordingly, we hold that petitioner’s conviction cannot stand under the Fourteenth Amendment. The judgment must be reversed.
Notes, Comments, and Questions
For a case in which coercive conduct was alleged but the Court nonetheless affirmed a conviction, students should see Lisbena v. California, 314 U.S. 219 (1941). In a dissent joined by Justice Douglas, Justice Black wrote, “The testimony of the officers to whom the confession was given is enough, standing alone, to convince me that it could not have been free and voluntary.” In particular, the dissent noted that “an investigator, ‘slapped’ the defendant whose left ear was thereafter red and swollen” and that squads of questioners took turns interviewing the defendant, in a manner similar to other cases we have seen. The majority, however, deferred to state court findings “as concerns the petitioner’s claims of physical violence, threats or implied promises of leniency.” Despite referring to “the violations of law involved in the treatment of the petitioner,” the Court declined to find a Due Process violation. Instead, it called the case “close to the line” and held that the defendant “exhibited a self-possession, a coolness, and an acumen throughout his questioning, and at his trial, which negatives the view that he had so lost his freedom of action that the statements made were not his but were the result of the deprivation of his free choice to admit, to deny, or to refuse to answer.”
These days, a promise of lenient treatment does not automatically render the ensuing confession involuntary. Instead, it is a factor to consider as part of the “totality-of-the-circumstances” test the Court applies to Due Process claims.
The next case also involved facts very close to the line that separates “voluntary” confessions from “involuntary” confessions. Note that while Justice White wrote for the Court, part of his opinion is a dissent because he could not obtain majority support.
Supreme Court of the United States
Arizona v. Oreste C. Fulminante
Decided March 26, 1991 – 499 U.S. 279
Justice WHITE delivered an opinion, Parts I, II, and IV of which are the opinion of the Court, and Part III of which is a dissenting opinion.3
The Arizona Supreme Court ruled in this case that respondent Oreste Fulminante’s confession, received in evidence at his trial for murder, had been coerced and that its use against him was barred by the Fifth and Fourteenth Amendments to the United States Constitution. The court also held that the harmless-error rule could not be used to save the conviction. We affirm the judgment of the Arizona court, although for different reasons than those upon which that court relied.
I
Early in the morning of September 14, 1982, Fulminante called the Mesa, Arizona, Police Department to report that his 11-year-old stepdaughter, Jeneane Michelle Hunt, was missing. He had been caring for Jeneane while his wife, Jeneane’s mother, was in the hospital. Two days later, Jeneane’s body was found in the desert east of Mesa. She had been shot twice in the head at close range with a large caliber weapon, and a ligature was around her neck. Because of the decomposed condition of the body, it was impossible to tell whether she had been sexually assaulted.
Fulminante’s statements to police concerning Jeneane’s disappearance and his relationship with her contained a number of inconsistencies, and he became a suspect in her killing. When no charges were filed against him, Fulminante left Arizona for New Jersey. Fulminante was later convicted in New Jersey on federal charges of possession of a firearm by a felon.
Fulminante was incarcerated in the Ray Brook Federal Correctional Institution in New York. There he became friends with another inmate, Anthony Sarivola, then serving a 60-day sentence for extortion. The two men came to spend several hours a day together. Sarivola, a former police officer, had been involved in loansharking for organized crime but then became a paid informant for the Federal Bureau of Investigation. While at Ray Brook, he masqueraded as an organized crime figure. After becoming friends with Fulminante, Sarivola heard a rumor that Fulminante was suspected of killing a child in Arizona. Sarivola then raised the subject with Fulminante in several conversations, but Fulminante repeatedly denied any involvement in Jeneane’s death. During one conversation, he told Sarivola that Jeneane had been killed by bikers looking for drugs; on another occasion, he said he did not know what had happened. Sarivola passed this information on to an agent of the Federal Bureau of Investigation, who instructed Sarivola to find out more.
Sarivola learned more one evening in October 1983, as he and Fulminante walked together around the prison track. Sarivola said that he knew Fulminante was “starting to get some tough treatment and whatnot” from other inmates because of the rumor. Sarivola offered to protect Fulminante from his fellow inmates, but told him, “‘You have to tell me about it,’ you know. I mean, in other words, ‘For me to give you any help.’” Fulminante then admitted to Sarivola that he had driven Jeneane to the desert on his motorcycle, where he choked her, sexually assaulted her, and made her beg for her life, before shooting her twice in the head.
Sarivola was released from prison in November 1983. Fulminante was released the following May, only to be arrested the next month for another weapons violation. On September 4, 1984, Fulminante was indicted in Arizona for the first-degree murder of Jeneane.
Prior to trial, Fulminante moved to suppress the statement he had given Sarivola in prison, as well as a second confession he had given to Donna Sarivola, then Anthony Sarivola’s fiancée and later his wife, following his May 1984 release from prison. He asserted that the confession to Sarivola was coerced, and that the second confession was the “fruit” of the first. Following the hearing, the trial court denied the motion to suppress, specifically finding that, based on the stipulated facts, the confessions were voluntary. The State introduced both confessions as evidence at trial, and on December 19, 1985, Fulminante was convicted of Jeneane’s murder. He was subsequently sentenced to death.
Fulminante appealed, arguing, among other things, that his confession to Sarivola was the product of coercion and that its admission at trial violated his rights to due process under the Fifth and Fourteenth Amendments to the United States Constitution. After considering the evidence at trial as well as the stipulated facts before the trial court on the motion to suppress, the Arizona Supreme Court held that the confession was coerced, but initially determined that the admission of the confession at trial was harmless error, because of the overwhelming nature of the evidence against Fulminante. Upon Fulminante’s motion for reconsideration, however, the court ruled that this Court’s precedent precluded the use of the harmless-error analysis in the case of a coerced confession. The court therefore reversed the conviction and ordered that Fulminante be retried without the use of the confession to Sarivola. Because of differing views in the state and federal courts over whether the admission at trial of a coerced confession is subject to a harmless-error analysis, we granted the State’s petition for certiorari. Although a majority of this Court finds that such a confession is subject to a harmless-error analysis, for the reasons set forth below, we affirm the judgment of the Arizona court.
II
We deal first with the State’s contention that the court below erred in holding Fulminante’s confession to have been coerced. In applying the totality of the circumstances test to determine that the confession to Sarivola was coerced, the Arizona Supreme Court focused on a number of relevant facts. First, the court noted that “because [Fulminante] was an alleged child murderer, he was in danger of physical harm at the hands of other inmates.” In addition, Sarivola was aware that Fulminante had been receiving “‘rough treatment from the guys.’” Using his knowledge of these threats, Sarivola offered to protect Fulminante in exchange for a confession to Jeneane’s murder, and “[i]n response to Sarivola’s offer of protection, [Fulminante] confessed.” Agreeing with Fulminante that “Sarivola’s promise was ‘extremely coercive,’” the Arizona court declared: “[T]he confession was obtained as a direct result of extreme coercion and was tendered in the belief that the defendant’s life was in jeopardy if he did not confess. This is a true coerced confession in every sense of the word.”
We normally give great deference to the factual findings of the state court. Nevertheless, “the ultimate issue of ‘voluntariness’ is a legal question requiring independent federal determination.” Although the question is a close one, we agree with the Arizona Supreme Court’s conclusion that Fulminante’s confession was coerced. The Arizona Supreme Court found a credible threat of physical violence unless Fulminante confessed. Our cases have made clear that a finding of coercion need not depend upon actual violence by a government agent; a credible threat is sufficient. Accepting the Arizona court’s finding, permissible on this record, that there was a credible threat of physical violence, we agree with its conclusion that Fulminante’s will was overborne in such a way as to render his confession the product of coercion.
III4
Four of us, Justices MARSHALL, BLACKMUN, STEVENS, and myself, would affirm the judgment of the Arizona Supreme Court on the ground that the harmless-error rule is inapplicable to erroneously admitted coerced confessions. We thus disagree with the Justices who have a contrary view.
The majority today abandons what until now the Court has regarded as the “axiomatic [proposition] that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, and even though there is ample evidence aside from the confession to support the conviction.” Today, a majority of the Court, without any justification, overrules [a] vast body of precedent without a word and in so doing dislodges one of the fundamental tenets of our criminal justice system.
The search for truth is indeed central to our system of justice, but “certain constitutional rights are not, and should not be, subject to harmless-error analysis because those rights protect important values that are unrelated to the truth-seeking function of the trial.” The right of a defendant not to have his coerced confession used against him is among those rights, for using a coerced confession “abort[s] the basic trial process” and “render[s] a trial fundamentally unfair.”
For the foregoing reasons the four of us would adhere to the consistent line of authority that has recognized as a basic tenet of our criminal justice system the prohibition against using a defendant’s coerced confession against him at his criminal trial. Stare decisis is “of fundamental importance to the rule of law;” the majority offers no convincing reason for overturning our long line of decisions requiring the exclusion of coerced confessions.
IV
Since five Justices have determined that harmless-error analysis applies to coerced confessions, it becomes necessary to evaluate under that ruling the admissibility of Fulminante’s confession to Sarivola. “Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” The Court has the power to review the record de novo in order to determine an error’s harmlessness. In so doing, it must be determined whether the State has met its burden of demonstrating that the admission of the confession to Sarivola did not contribute to Fulminante’s conviction. Five of us are of the view that the State has not carried its burden and accordingly affirm the judgment of the court below reversing respondent’s conviction.
A confession is like no other evidence. Indeed, “the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. … [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.” While some statements by a defendant may concern isolated aspects of the crime or may be incriminating only when linked to other evidence, a full confession in which the defendant discloses the motive for and means of the crime may tempt the jury to rely upon that evidence alone in reaching its decision. In the case of a coerced confession such as that given by Fulminante to Sarivola, the risk that the confession is unreliable, coupled with the profound impact that the confession has upon the jury, requires a reviewing court to exercise extreme caution before determining that the admission of the confession at trial was harmless.
Our review of the record leads us to conclude that the State has failed to meet its burden of establishing, beyond a reasonable doubt, that the admission of Fulminante’s confession to Anthony Sarivola was harmless error.
Because a majority of the Court has determined that Fulminante’s confession to Anthony Sarivola was coerced and because a majority has determined that admitting this confession was not harmless beyond a reasonable doubt, we agree with the Arizona Supreme Court’s conclusion that Fulminante is entitled to a new trial at which the confession is not admitted. Accordingly the judgment of the Arizona Supreme Court is [a]ffirmed.
Chief Justice REHNQUIST, with whom Justice O’CONNOR joins, Justice KENNEDY and Justice SOUTER join as to Parts I and II, and Justice SCALIA joins as to Parts II and III, delivered the opinion of the Court with respect to Part II, and a dissenting opinion with respect to Parts I and III.
The Court today properly concludes that the admission of an “involuntary” confession at trial is subject to harmless error analysis. Nonetheless, the independent review of the record which we are required to make shows that respondent Fulminante’s confession was not in fact involuntary. And even if the confession were deemed to be involuntary, the evidence offered at trial, including a second, untainted confession by Fulminante, supports the conclusion that any error here was certainly harmless.
The admissibility of a confession such as that made by respondent Fulminante depends upon whether it was voluntarily made. “The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.”
In this case the parties stipulated to the basic facts at the hearing in the Arizona trial court on respondent’s motion to suppress the confession. Anthony Sarivola, an inmate at the Ray Brook Prison, was a paid confidential informant for the FBI. While at Ray Brook, various rumors reached Sarivola that Oreste Fulminante, a fellow inmate who had befriended Sarivola, had killed his stepdaughter in Arizona. Sarivola passed these rumors on to his FBI contact, who told him “to find out more about it.” Sarivola, having already discussed the rumors with respondent on several occasions, asked him whether the rumors were true, adding that he might be in a position to protect Fulminante from physical recriminations in prison, but that “[he] must tell him the truth.” Fulminante then confessed to Sarivola that he had in fact killed his stepdaughter in Arizona, and provided Sarivola with substantial details about the manner in which he killed the child. At the suppression hearing, Fulminante stipulated to the fact that “[a]t no time did the defendant indicate he was in fear of other inmates nor did he ever seek Mr. Sarivola’s ‘protection.’” The trial court was also aware, through an excerpt from Sarivola’s interview testimony which respondent appended to his reply memorandum, that Sarivola believed Fulminante’s time was “running short” and that he would “have went out of the prison horizontally.” The trial court found that respondent’s confession was voluntary.
On the basis of the record before it, the Supreme Court stated:
“Defendant contends that because he was an alleged child murderer, he was in danger of physical harm at the hands of other inmates. Sarivola was aware that defendant faced the possibility of retribution from other inmates, and that in return for the confession with respect to the victim’s murder, Sarivola would protect him. Moreover, the defendant maintains that Sarivola’s promise was “extremely coercive’ because the ‘obvious’ inference from the promise was that his life would be in jeopardy if he did not confess. We agree.”
Exercising our responsibility to make the independent examination of the record necessary to decide this federal question, I am at a loss to see how the Supreme Court of Arizona reached the conclusion that it did. Fulminante offered no evidence that he believed that his life was in danger or that he in fact confessed to Sarivola in order to obtain the proffered protection. Indeed, he had stipulated that “[a]t no time did the defendant indicate he was in fear of other inmates nor did he ever seek Mr. Sarivola’s ‘protection.’” Sarivola’s testimony that he told Fulminante that “if [he] would tell the truth, he could be protected,” adds little if anything to the substance of the parties’ stipulation. The decision of the Supreme Court of Arizona rests on an assumption that is squarely contrary to this stipulation, and one that is not supported by any testimony of Fulminante.
The conversations between Sarivola and Fulminante were not lengthy, and the defendant was free at all times to leave Sarivola’s company. Sarivola at no time threatened him or demanded that he confess; he simply requested that he speak the truth about the matter. Fulminante was an experienced habitue of prisons, and presumably able to fend for himself. In concluding on these facts that Fulminante’s confession was involuntary, the Court today embraces a more expansive definition of that term than is warranted by any of our decided cases.
* * *
In Colorado v. Connelly, the Court considered whether a confession could be deemed “involuntary” without evidence of misconduct by any government official. In particular, the question was whether a suspect’s mental illness could make his confession involuntary for purposes of the Due Process Clause of the Fourteenth Amendment.
Supreme Court of the United States
Colorado v. Francis Barry Connelly
Decided Dec. 10, 1986 – 479 U.S. 157
Chief Justice REHNQUIST delivered the opinion of the Court.
In this case, the Supreme Court of Colorado held that the United States Constitution requires a court to suppress a confession when the mental state of the defendant, at the time he made the confession, interfered with his “rational intellect” and his “free will.” Because this decision seemed to conflict with prior holdings of this Court, we granted certiorari. We conclude that the admissibility of this kind of statement is governed by state rules of evidence. We therefore reverse.
I
On August 18, 1983, Officer Patrick Anderson of the Denver Police Department was in uniform, working in an off-duty capacity in downtown Denver. Respondent Francis Connelly approached Officer Anderson and, without any prompting, stated that he had murdered someone and wanted to talk about it. Anderson immediately advised respondent that he had the right to remain silent, that anything he said could be used against him in court, and that he had the right to an attorney prior to any police questioning. Respondent stated that he understood these rights but he still wanted to talk about the murder. Understandably bewildered by this confession, Officer Anderson asked respondent several questions. Connelly denied that he had been drinking, denied that he had been taking any drugs, and stated that, in the past, he had been a patient in several mental hospitals. Officer Anderson again told Connelly that he was under no obligation to say anything. Connelly replied that it was “all right,” and that he would talk to Officer Anderson because his conscience had been bothering him. To Officer Anderson, respondent appeared to understand fully the nature of his acts.
Shortly thereafter, Homicide Detective Stephen Antuna arrived. Respondent was again advised of his rights, and Detective Antuna asked him “what he had on his mind.” Respondent answered that he had come all the way from Boston to confess to the murder of Mary Ann Junta, a young girl whom he had killed in Denver sometime during November 1982. Respondent was taken to police headquarters, and a search of police records revealed that the body of an unidentified female had been found in April 1983. Respondent openly detailed his story to Detective Antuna and Sergeant Thomas Haney, and readily agreed to take the officers to the scene of the killing. Under Connelly’s sole direction, the two officers and respondent proceeded in a police vehicle to the location of the crime. Respondent pointed out the exact location of the murder. Throughout this episode, Detective Antuna perceived no indication whatsoever that respondent was suffering from any kind of mental illness.
Respondent was held overnight. During an interview with the public defender’s office the following morning, he became visibly disoriented. He began giving confused answers to questions, and for the first time, stated that “voices” had told him to come to Denver and that he had followed the directions of these voices in confessing. Respondent was sent to a state hospital for evaluation. He was initially found incompetent to assist in his own defense. By March 1984, however, the doctors evaluating respondent determined that he was competent to proceed to trial.
At a preliminary hearing, respondent moved to suppress all of his statements. Dr. Jeffrey Metzner, a psychiatrist employed by the state hospital, testified that respondent was suffering from chronic schizophrenia and was in a psychotic state at least as of August 17, 1983, the day before he confessed. Metzner’s interviews with respondent revealed that respondent was following the “voice of God.” This voice instructed respondent to withdraw money from the bank, to buy an airplane ticket, and to fly from Boston to Denver. When respondent arrived from Boston, God’s voice became stronger and told respondent either to confess to the killing or to commit suicide. Reluctantly following the command of the voices, respondent approached Officer Anderson and confessed.
Dr. Metzner testified that, in his expert opinion, respondent was experiencing “command hallucinations.” This condition interfered with respondent’s “volitional abilities; that is, his ability to make free and rational choices.” Dr. Metzner further testified that Connelly’s illness did not significantly impair his cognitive abilities. Thus, respondent understood the rights he had when Officer Anderson and Detective Antuna advised him that he need not speak. Dr. Metzner admitted that the “voices” could in reality be Connelly’s interpretation of his own guilt, but explained that in his opinion, Connelly’s psychosis motivated his confession.
On the basis of this evidence the Colorado trial court decided that respondent’s statements must be suppressed because they were “involuntary.” The trial court also found that Connelly’s mental state vitiated his attempted waiver of the right to counsel and the privilege against compulsory self-incrimination. Accordingly, respondent’s initial statements and his custodial confession were suppressed. The Colorado Supreme Court affirmed.
II
[W]e [have] held that by virtue of the Due Process Clause “certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned.”
Indeed, coercive government misconduct was the catalyst for this Court’s seminal confession case, Brown v. Mississippi. In that case, police officers extracted confessions from the accused through brutal torture. The Court had little difficulty concluding that even though the Fifth Amendment did not at that time apply to the States, the actions of the police were “revolting to the sense of justice.”
Thus the cases considered by this Court over the 50 years since Brown v. Mississippi have focused upon the crucial element of police overreaching. While each confession case has turned on its own set of factors justifying the conclusion that police conduct was oppressive, all have contained a substantial element of coercive police conduct. Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law. Respondent correctly notes that as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the “voluntariness” calculus. But this fact does not justify a conclusion that a defendant’s mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional “voluntariness.”
Our “involuntary confession” jurisprudence is entirely consistent with the settled law requiring some sort of “state action” to support a claim of violation of the Due Process Clause of the Fourteenth Amendment. The Colorado trial court, of course, found that the police committed no wrongful acts, and that finding has been neither challenged by respondent nor disturbed by the Supreme Court of Colorado. The latter court, however, concluded that sufficient state action was present by virtue of the admission of the confession into evidence in a court of the State.
The difficulty with the approach of the Supreme Court of Colorado is that it fails to recognize the essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other. The flaw in respondent’s constitutional argument is that it would expand our previous line of “voluntariness” cases into a far-ranging requirement that courts must divine a defendant’s motivation for speaking or acting as he did even though there be no claim that governmental conduct coerced his decision.
The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause. Moreover, suppressing respondent’s statements would serve absolutely no purpose in enforcing constitutional guarantees. The purpose of excluding evidence seized in violation of the Constitution is to substantially deter future violations of the Constitution. Only if we were to establish a brand new constitutional right—the right of a criminal defendant to confess to his crime only when totally rational and properly motivated—could respondent’s present claim be sustained.
We have previously cautioned against expanding “currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence before state juries….” We abide by that counsel now. We hold that coercive police activity is a necessary predicate to the finding that a confession is not “voluntary” within the meaning of the Due Process Clause of the Fourteenth Amendment. We also conclude that the taking of respondent’s statements, and their admission into evidence, constitute no violation of that Clause.
The judgment of the Supreme Court of Colorado is accordingly reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
Today the Court denies Mr. Connelly his fundamental right to make a vital choice with a sane mind, involving a determination that could allow the State to deprive him of liberty or even life. This holding is unprecedented: “Surely in the present stage of our civilization a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane….” Because I believe that the use of a mentally ill person’s involuntary confession is antithetical to the notion of fundamental fairness embodied in the Due Process Clause, I dissent.
The respondent’s seriously impaired mental condition is clear on the record of this case. At the time of his confession, Mr. Connelly suffered from a “longstanding severe mental disorder,” diagnosed as chronic paranoid schizophrenia. He had been hospitalized for psychiatric reasons five times prior to his confession; his longest hospitalization lasted for seven months. Mr. Connelly heard imaginary voices and saw nonexistent objects. He believed that his father was God, and that he was a reincarnation of Jesus.
At the time of his confession, Mr. Connelly’s mental problems included “grandiose and delusional thinking.” He had a known history of “thought withdrawal and insertion.” Although physicians had treated Mr. Connelly “with a wide variety of medications in the past including antipsychotic medications,” he had not taken any antipsychotic medications for at least six months prior to his confession. Following his arrest, Mr. Connelly initially was found incompetent to stand trial because the court-appointed psychiatrist, Dr. Metzner, “wasn’t very confident that he could consistently relate accurate information.” Dr. Metzner testified that Mr. Connelly was unable “to make free and rational choices” due to auditory hallucinations. He achieved competency to stand trial only after six months of hospitalization and treatment with antipsychotic and sedative medications.
The state trial court found that the “overwhelming evidence presented by the Defense” indicated that the prosecution did not meet its burden of demonstrating by a preponderance of the evidence that the initial statement to Officer Anderson was voluntary. The Supreme Court of Colorado affirmed after evaluating “the totality of circumstances” surrounding the unsolicited confession.
The absence of police wrongdoing should not, by itself, determine the voluntariness of a confession by a mentally ill person. The requirement that a confession be voluntary reflects a recognition of the importance of free will and of reliability in determining the admissibility of a confession, and thus demands an inquiry into the totality of the circumstances surrounding the confession.
Today’s decision restricts the application of the term “involuntary” to those confessions obtained by police coercion. Confessions by mentally ill individuals or by persons coerced by parties other than police officers are now considered “voluntary.” The Court’s failure to recognize all forms of involuntariness or coercion as antithetical to due process reflects a refusal to acknowledge free will as a value of constitutional consequence. This right requires vigilant protection if we are to safeguard the values of private conscience and human dignity.
Since the Court redefines voluntary confessions to include confessions by mentally ill individuals, the reliability of these confessions becomes a central concern. The instant case starkly highlights the danger of admitting a confession by a person with a severe mental illness. The trial court made no findings concerning the reliability of Mr. Connelly’s involuntary confession, since it believed that the confession was excludable on the basis of involuntariness. However, the overwhelming evidence in the record points to the unreliability of Mr. Connelly’s delusional mind. Mr. Connelly was found incompetent to stand trial because he was unable to relate accurate information, and the court-appointed psychiatrist indicated that Mr. Connelly was actively hallucinating and exhibited delusional thinking at the time of his confession. The Court, in fact, concedes that “[a] statement rendered by one in the condition of respondent might be proved to be quite unreliable….”
Moreover, the record is barren of any corroboration of the mentally ill defendant’s confession. No physical evidence links the defendant to the alleged crime. Police did not identify the alleged victim’s body as the woman named by the defendant. Mr. Connelly identified the alleged scene of the crime, but it has not been verified that the unidentified body was found there or that a crime actually occurred there. There is not a shred of competent evidence in this record linking the defendant to the charged homicide. There is only Mr. Connelly’s confession.
Minimum standards of due process should require that the trial court find substantial indicia of reliability, on the basis of evidence extrinsic to the confession itself, before admitting the confession of a mentally ill person into evidence. I would require the trial court to make such a finding on remand. To hold otherwise allows the State to imprison and possibly to execute a mentally ill defendant based solely upon an inherently unreliable confession.
I dissent.
* * *
In part because the Court found it difficult to regulate interrogations effectively using only the Due Process Clauses, the Justices were inspired to create the Miranda Rule, which imposes additional requirements on police. We turn to Miranda in our next chapter. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/03%3A_Interrogations/3.01%3A_Chapter_22_-_Due_Process_and_the_Voluntariness_Requirement.txt |
INTERROGATIONS
The Miranda Rule
In Miranda v. Arizona, the Court created an entirely new method of regulating police interrogations of suspects. Rather than search the records of each case for evidence of voluntariness, the Court set forth a procedure under which law enforcement officers must—at least sometimes—inform suspects of certain constitutional rights and the potential consequences of waiving those rights. Under the new rule, the Court would presume confessions were obtained involuntarily if officers failed to follow the new procedure, and such a presumption would lead to exclusion of confessions from evidence at trial. Over the next several chapters, we will explore (1) the basics of the Miranda Rule, (2) how the Court has defined important terms like “custody” and “interrogation,” (3) what constitutes an effective “waiver” of rights under Miranda, and (4) what exceptions apply to the rule that evidence obtained in violation of Miranda is excluded from evidence.
Even more than Terry v. Ohio—which all lawyers should be able to summarize—Miranda v. Arizona is a case that friends and acquaintances will expect lawyers to understand. It is probably the most famous criminal procedure case ever decided, and students should form their own opinions about the doctrine it created.
Supreme Court of the United States
Ernesto A. Miranda v. State of Arizona
Decided June 13, 1966 – 384 U.S. 436
Mr. Chief Justice WARREN delivered the opinion of the Court.
The cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.
We dealt with certain phases of this problem recently in Escobedo v. State of Illinois, 378 U.S. 478 (1964). There, as in the four cases before us, law enforcement officials took the defendant into custody and interrogated him in a police station for the purpose of obtaining a confession. The police did not effectively advise him of his right to remain silent or of his right to consult with his attorney. Rather, they confronted him with an alleged accomplice who accused him of having perpetrated a murder. When the defendant denied the accusation and said “I didn’t shoot Manuel, you did it,” they handcuffed him and took him to an interrogation room. There, while handcuffed and standing, he was questioned for four hours until he confessed. During this interrogation, the police denied his request to speak to his attorney, and they prevented his retained attorney, who had come to the police station, from consulting with him. At his trial, the State, over his objection, introduced the confession against him. We held that the statements thus made were constitutionally inadmissible. This case has been the subject of judicial interpretation and spirited legal debate since it was decided two years ago.
We start here, as we did in Escobedo, with the premise that our holding is not an innovation in our jurisprudence, but is an application of principles long recognized and applied in other settings. We have undertaken a thorough re-examination of the Escobedo decision and the principles it announced, and we reaffirm it. That case was but an explication of basic rights that are enshrined in our Constitution—that “No person … shall be compelled in any criminal case to be a witness against himself,” and that “the accused shall … have the Assistance of Counsel”—rights which were put in jeopardy in that case through official overbearing. These precious rights were fixed in our Constitution only after centuries of persecution and struggle. And in the words of Chief Justice Marshall, they were secured “for ages to come, and … designed to approach immortality as nearly as human institutions can approach it.”
Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.
I
The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way. In each, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process. In all the cases, the questioning elicited oral admissions, and in three of them, signed statements as well which were admitted at their trials. They all thus share salient features—incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.
An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today. The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado. From extensive factual studies undertaken in the early 1930’s, including the famous Wickersham Report to Congress by a Presidential Commission, it is clear that police violence and the “third degree” flourished at that time. In a series of cases decided by this Court long after these studies, the police resorted to physical brutality—beatings, hanging, whipping—and to sustained and protracted questioning incommunicado in order to extort confessions. The Commission on Civil Rights in 1961 found much evidence to indicate that ‘some policemen still resort to physical force to obtain confessions.” The use of physical brutality and violence is not, unfortunately, relegated to the past or to any part of the country. Only recently in Kings County, New York, the police brutally beat, kicked and placed lighted cigarette butts on the back of a potential witness under interrogation for the purpose of securing a statement incriminating a third party.
The examples given above are undoubtedly the exception now, but they are sufficiently widespread to be the object of concern. Unless a proper limitation upon custodial interrogation is achieved—such as these decisions will advance—there can be no assurance that practices of this nature will be eradicated in the foreseeable future.
Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. As we have stated before, “this Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.” Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms. A valuable source of information about present police practices, however, may be found in various police manuals and texts which document procedures employed with success in the past, and which recommend various other effective tactics. These texts are used by law enforcement agencies themselves as guides. It should be noted that these texts professedly present the most enlightened and effective means presently used to obtain statements through custodial interrogation. By considering these texts and other data, it is possible to describe procedures observed and noted around the country.
The officers are told by the manuals that the “principal psychological factor contributing to a successful interrogation is privacy—being alone with the person under interrogation.” To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect’s guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense, to cast blame on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already—that he is guilty. Explanations to the contrary are dismissed and discouraged. The texts thus stress that the major qualities an interrogator should possess are patience and perseverance. The manuals suggest that the suspect be offered legal excuses for his actions in order to obtain an initial admission of guilt.
When the techniques described above prove unavailing, the texts recommend they be alternated with a show of some hostility. One ploy often used has been termed the “friendly-unfriendly” or the “Mutt and Jeff” act:
“… In this technique, two agents are employed. Mutt, the relentless investigator, who knows the subject is guilty and is not going to waste any time. He’s sent a dozen men away for this crime and he’s going to send the subject away for the full term. Jeff, on the other hand, is obviously a kindhearted man. He has a family himself. He has a brother who was involved in a little scrape like this. He disapproves of Mutt and his tactics and will arrange to get him off the case if the subject will cooperate. He can’t hold Mutt off for very long. The subject would be wise to make a quick decision. The technique is applied by having both investigators present while Mutt acts out his role. Jeff may stand by quietly and demur at some of Mutt’s tactics. When Jeff makes his plea for cooperation, Mutt is not present in the room.”
The interrogators sometimes are instructed to induce a confession out of trickery. The technique here is quite effective in crimes which require identification or which run in series. In the identification situation, the interrogator may take a break in his questioning to place the subject among a group of men in a line-up. “The witness or complainant (previously coached, if necessary) studies the line-up and confidently points out the subject as the guilty party.” Then the questioning resumes “as though there were now no doubt about the guilt of the subject.”
The manuals also contain instructions for police on how to handle the individual who refuses to discuss the matter entirely, or who asks for an attorney or relatives. The examiner is to concede him the right to remain silent. “This usually has a very undermining effect. First of all, he is disappointed in his expectation of an unfavorable reaction on the part of the interrogator. Secondly, a concession of this right to remain silent impresses the subject with the apparent fairness of his interrogator.” After this psychological conditioning, however, the officer is told to point out the incriminating significance of the suspect’s refusal to talk:
“Joe, you have a right to remain silent. That’s your privilege and I’m the last person in the world who’ll try to take it away from you. If that’s the way you want to leave this, O.K. But let me ask you this. Suppose you were in my shoes and I were in yours and you called me in to ask me about this and I told you, ‘I don’t want to answer any of your questions.’ You’d think I had something to hide, and you’d probably be right in thinking that. That’s exactly what I’ll have to think about you, and so will everybody else. So let’s sit here and talk this whole thing over.”
Few will persist in their initial refusal to talk, it is said, if this monologue is employed correctly.
From these representative samples of interrogation techniques, the setting prescribed by the manuals and observed in practice becomes clear. In essence, it is this: To be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the preconceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are employed. To obtain a confession, the interrogator must “patiently maneuver himself or his quarry into a position from which the desired objective may be attained.” When normal procedures fail to produce the needed result, the police may resort to deceptive stratagems such as giving false legal advice. It is important to keep the subject off balance, for example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights.
Even without employing brutality, the “third degree” or the specific stratagems described above, the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals.
In these cases [before us], we might not find the defendants’ statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest. In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures.
It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. The current practice of incommunicado interrogation is at odds with one of our Nation’s most cherished principles—that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.
From the foregoing, we can readily perceive an intimate connection between the privilege against self-incrimination and police custodial questioning. It is fitting to turn to history and precedent underlying the Self-Incrimination Clause to determine its applicability in this situation.
II
We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came and the fervor with which it was defended. Its roots go back into ancient times.
The question in these cases is whether the privilege is fully applicable during a period of custodial interrogation. In this Court, the privilege has consistently been accorded a liberal construction. We are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by law-enforcement officers during in-custody questioning. An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery.
III
Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.
It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise of their creative rule-making capacities. Therefore we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted. Our decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect. We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws. However, unless we are shown other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the following safeguards must be observed.
At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it—the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere. It is not just the subnormal or woefully ignorant who succumb to an interrogator’s imprecations, whether implied or expressly stated, that the interrogation will continue until a confession is obtained or that silence in the face of accusation is itself damning and will bode ill when presented to a jury. Further, the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it.
The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clearcut fact. More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time.
The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system—that he is not in the presence of persons acting solely in his interest.
The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent without more “will benefit only the recidivist and the professional.” Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.
The presence of counsel at the interrogation may serve several significant subsidiary functions as well. If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial.
An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. The accused who does not know his rights and therefore does not make a request may be the person who most needs counsel.
Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.
If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney. The financial ability of the individual has no relationship to the scope of the rights involved here. The privilege against self-incrimination secured by the Constitution applies to all individuals. The need for counsel in order to protect the privilege exists for the indigent as well as the affluent. In fact, were we to limit these constitutional rights to those who can retain an attorney, our decisions today would be of little significance. The cases before us as well as the vast majority of confession cases with which we have dealt in the past involve those unable to retain counsel. While authorities are not required to relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of justice. Denial of counsel to the indigent at the time of interrogation while allowing an attorney to those who can afford one would be no more supportable by reason or logic than the similar situation at trial and on appeal struck down in Gideon v. Wainwright, 372 U.S. 335 (1963), and Douglas v. California, 372 U.S. 353 (1963).
In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent—the person most often subjected to interrogation—the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.
Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.
This does not mean, as some have suggested, that each police station must have a “station house lawyer” present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s Fifth Amendment privilege so long as they do not question him during that time.
If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. This Court has always set high standards of proof for the waiver of constitutional rights, and we reassert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.
An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. Moreover, where in-custody interrogation is involved, there is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent when interrogated.
Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege. Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.
The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.
The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way. It is at this point that our adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system recognized in some countries. Under the system of warnings we delineate today or under any other system which may be devised and found effective, the safeguards to be erected about the privilege must come into play at this point.
Our decision is not intended to hamper the traditional function of police officers in investigating crime. When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.
In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.
IV
If the individual desires to exercise his privilege, he has the right to do so. This is not for the authorities to decide. An attorney may advise his client not to talk to police until he has had an opportunity to investigate the case, or he may wish to be present with his client during any police questioning. In doing so an attorney is merely exercising the good professional judgment he has been taught. This is not cause for considering the attorney a menace to law enforcement. He is merely carrying out what he is sworn to do under his oath—to protect to the extent of his ability the rights of his client. In fulfilling this responsibility the attorney plays a vital role in the administration of criminal justice under our Constitution.
In announcing these principles, we are not unmindful of the burdens which law enforcement officials must bear, often under trying circumstances. We also fully recognize the obligation of all citizens to aid in enforcing the criminal laws. This Court, while protecting individual rights, has always given ample latitude to law enforcement agencies in the legitimate exercise of their duties. The limits we have placed on the interrogation process should not constitute an undue interference with a proper system of law enforcement. As we have noted, our decision does not in any way preclude police from carrying out their traditional investigatory functions. Although confessions may play an important role in some convictions, the cases before us present graphic examples of the overstatement of the “need” for confessions. In each case authorities conducted interrogations ranging up to five days in duration despite the presence, through standard investigating practices, of considerable evidence against each defendant.
V
Because of the nature of the problem and because of its recurrent significance in numerous cases, we have to this point discussed the relationship of the Fifth Amendment privilege to police interrogation without specific concentration on the facts of the cases before us. In each instance, we have concluded that statements were obtained from the defendant under circumstances that did not meet constitutional standards for protection of the privilege.
Mr. Justice HARLAN, whom Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be only time can tell. But the basic flaws in the Court’s justification seem to me readily apparent now once all sides of the problem are considered.
At the outset, it is well to note exactly what is required by the Court’s new constitutional code of rules for confessions. The foremost requirement, upon which later admissibility of a confession depends, is that a fourfold warning be given to a person in custody before he is questioned, namely, that he has a right to remain silent, that anything he says may be used against him, that he has a right to have present an attorney during the questioning, and that if indigent he has a right to a lawyer without charge. To forgo these rights, some affirmative statement of rejection is seemingly required, and threats, tricks, or cajolings to obtain this waiver are forbidden. If before or during questioning the suspect seeks to invoke his right to remain silent, interrogation must be forgone or cease; a request for counsel brings about the same result until a lawyer is procured. Finally, there are a miscellany of minor directives, for example, the burden of proof of waiver is on the State, admissions and exculpatory statements are treated just like confessions, withdrawal of a waiver is always permitted, and so forth.
While the fine points of this scheme are far less clear than the Court admits, the tenor is quite apparent. The new rules are not designed to guard against police brutality or other unmistakably banned forms of coercion. Those who use third-degree tactics and deny them in court are equally able and destined to lie as skillfully about warnings and waivers. Rather, the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all. The aim in short is toward “voluntariness” in a utopian sense, or to view it from a different angle, voluntariness with a vengeance.
To incorporate this notion into the Constitution requires a strained reading of history and precedent and a disregard of the very pragmatic concerns that alone may on occasion justify such strains. I believe that reasoned examination will show that the Due Process Clauses provide an adequate tool for coping with confessions and that, even if the Fifth Amendment privilege against self-incrimination be invoked, its precedents taken as a whole do not sustain the present rules. Viewed as a choice based on pure policy, these new rules prove to be a highly debatable, if not one-sided, appraisal of the competing interests, imposed over widespread objection, at the very time when judicial restraint is most called for by the circumstances.
Without at all subscribing to the generally black picture of police conduct painted by the Court, I think it must be frankly recognized at the outset that police questioning allowable under due process precedents may inherently entail some pressure on the suspect and may seek advantage in his ignorance or weaknesses. The atmosphere and questioning techniques, proper and fair though they be, can in themselves exert a tug on the suspect to confess, and in this light “[t]o speak of any confessions of crime made after arrest as being ‘voluntary’ or ‘uncoerced’ is somewhat inaccurate, although traditional. A confession is wholly and incontestably voluntary only if a guilty person gives himself up to the law and becomes his own accuser.” Until today, the role of the Constitution has been only to sift out undue pressure, not to assure spontaneous confessions.
The Court’s new rules aim to offset these minor pressures and disadvantages intrinsic to any kind of police interrogation. The rules do not serve due process interests in preventing blatant coercion since, as I noted earlier, they do nothing to contain the policeman who is prepared to lie from the start. The rules work for reliability in confessions almost only in the Pickwickian sense that they can prevent some from being given at all.
What the Court largely ignores is that its rules impair, if they will not eventually serve wholly to frustrate, an instrument of law enforcement that has long and quite reasonably been thought worth the price paid for it. There can be little doubt that the Court’s new code would markedly decrease the number of confessions. To warn the suspect that he may remain silent and remind him that his confession may be used in court are minor obstructions. To require also an express waiver by the suspect and an end to questioning whenever he demurs must heavily handicap questioning. And to suggest or provide counsel for the suspect simply invites the end of the interrogation.
How much harm this decision will inflict on law enforcement cannot fairly be predicted with accuracy. Evidence on the role of confessions is notoriously incomplete. We do know that some crimes cannot be solved without confessions, that ample expert testimony attests to their importance in crime control, and that the Court is taking a real risk with society’s welfare in imposing its new regime on the country. The social costs of crime are too great to call the new rules anything but a hazardous experimentation.
Mr. Justice WHITE, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment.
Only a tiny minority of our judges who have dealt with the question, including today’s majority, have considered in-custody interrogation, without more, to be a violation of the Fifth Amendment. And this Court, as every member knows, has left standing literally thousands of criminal convictions that rested at least in part on confessions taken in the course of interrogation by the police after arrest.
By considering any answers to any interrogation to be compelled regardless of the content and course of examination and by escalating the requirements to prove waiver, the Court not only prevents the use of compelled confessions but for all practical purposes forbids interrogation except in the presence of counsel. That is, instead of confining itself to protection of the right against compelled self-incrimination the Court has created a limited Fifth Amendment right to counsel—or, as the Court expresses it, a “need for counsel to protect the Fifth Amendment privilege ….”
The obvious underpinning of the Court’s decision is a deep-seated distrust of all confessions. As the Court declares that the accused may not be interrogated without counsel present, absent a waiver of the right to counsel, and as the Court all but admonishes the lawyer to advise the accused to remain silent, the result adds up to a judicial judgment that evidence from the accused should not be used against him in any way, whether compelled or not. This is the not so subtle overtone of the opinion—that it is inherently wrong for the police to gather evidence from the accused himself. And this is precisely the nub of this dissent. I see nothing wrong or immoral, and certainly nothing unconstitutional, in the police’s asking a suspect whom they have reasonable cause to arrest whether or not he killed his wife or in confronting him with the evidence on which the arrest was based, at least where he has been plainly advised that he may remain completely silent. Until today, “the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence.” Particularly when corroborated, as where the police have confirmed the accused’s disclosure of the hiding place of implements or fruits of the crime, such confessions have the highest reliability and significantly contribute to the certitude with which we may believe the accused is guilty. Moreover, it is by no means certain that the process of confessing is injurious to the accused. To the contrary it may provide psychological relief and enhance the prospects for rehabilitation.
The rule announced today will measurably weaken the ability of the criminal law to perform these tasks. It is a deliberate calculus to prevent interrogations, to reduce the incidence of confessions and pleas of guilty and to increase the number of trials. Criminal trials, no matter how efficient the police are, are not sure bets for the prosecution, nor should they be if the evidence is not forthcoming. Under the present law, the prosecution fails to prove its case in about 30% of the criminal cases actually tried in the federal courts. But it is something else again to remove from the ordinary criminal case all those confessions which heretofore have been held to be free and voluntary acts of the accused and to thus establish a new constitutional barrier to the ascertainment of truth by the judicial process. There is, in my view, every reason to believe that a good many criminal defendants who otherwise would have been convicted on what this Court has previously thought to be the most satisfactory kind of evidence will now under this new version of the Fifth Amendment, either not be tried at all or will be acquitted if the State’s evidence, minus the confession, is put to the test of litigation.
In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection and who without it can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined. There is, of course, a saving factor: the next victims are uncertain, unnamed and unrepresented in this case.
Much of the trouble with the Court’s new rule is that it will operate indiscriminately in all criminal cases, regardless of the severity of the crime or the circumstances involved. It applies to every defendant, whether the professional criminal or one committing a crime of momentary passion who is not part and parcel of organized crime. It will slow down the investigation and the apprehension of confederates in those cases where time is of the essence, such as kidnapping and some of those involving organized crime.
Today’s decision leaves open such questions as whether the accused was in custody, whether his statements were spontaneous or the product of interrogation, whether the accused has effectively waived his rights, and whether nontestimonial evidence introduced at trial is the fruit of statements made during a prohibited interrogation, all of which are certain to prove productive of uncertainty during investigation and litigation during prosecution. For all these reasons, if further restrictions on police interrogation are desirable at this time, a more flexible approach makes much more sense than the Court’s constitutional straitjacket which forecloses more discriminating treatment by legislative or rule-making pronouncements.
Notes, Comments, and Questions
Most students are familiar with the Miranda warnings, even before reading the case. Prior to a custodial interrogation, officers must inform suspects of the following:
1) You have the right to remain silent
2) Anything you say can be used against you
3) You have the right to an attorney
4) An attorney will be provided by the government if you cannot pay
Review section I of the opinion to see where these specific warnings originated.
The Court finds the Constitutional basis in the 5th Amendment; an element of informal compulsion exists in any form of custodial interrogation, and specified warnings are needed to dispel the inherent pressure of custodial interrogation. Does the Court have the power to promulgate constitutional prophylactic rules?
The Miranda warnings may really be a way to avoid the difficulties of case-by-case determination of compulsion. How well do you think Miranda warnings work in practice to (1) reduce the compulsion suspects feel during custodial interrogations; and (2) reduce courts necessity to make case-by-case determinations of compulsion.
As you can imagine, suspects continue to confess, despite receiving appropriate Miranda warnings. Why do you think this is?
How Well Must Officers Administer the Miranda Warnings?
One issue not settled by Miranda was how closely police interrogators would be required to deliver the precise warnings set forth by the Miranda majority. Would word-for-word accuracy—or at least warnings materially identical to those provided by the Court—be necessary? Because police officers are human, perfect accuracy would not be a fair standard. The real question was how far officers could stray from the Court’s language while still having their warnings count for purposes of getting confessions into evidence under Miranda.
Supreme Court of the United States
California v. Randall James Prysock
June 29, 1981 – 453 U.S. 355
PER CURIAM.
This case presents the question whether the warnings given to respondent prior to a recorded conversation with a police officer satisfied the requirements of Miranda v. Arizona. Although ordinarily this Court would not be inclined to review a case involving application of that precedent to a particular set of facts, the opinion of the California Court of Appeal essentially laid down a flat rule requiring that the content of Miranda warnings be a virtual incantation of the precise language contained in the Miranda opinion. Because such a rigid rule was not mandated by Miranda or any other decision of this Court, and is not required to serve the purposes of Miranda, we grant the motion of respondent for leave to proceed in forma pauperis and the petition for certiorari and reverse.
On January 30, 1978, Mrs. Donna Iris Erickson was brutally murdered. Later that evening respondent and a codefendant were apprehended for commission of the offense. Respondent was brought to a substation of the Tulare County Sheriff’s Department and advised of his Miranda rights. He declined to talk and, since he was a minor, his parents were notified. Respondent’s parents arrived and after meeting with them respondent decided to answer police questions. An officer questioned respondent, on tape, with respondent’s parents present. The tape reflects that the following warnings were given prior to any questioning:
“Sgt. Byrd: … Mr. Randall James Prysock, earlier today I advised you of your legal rights and at that time you advised me you did not wish to talk to me, is that correct?
“Randall P.: Yeh.
“Sgt. Byrd: And, uh, during, at the first interview your folks were not present, they are now present. I want to go through your legal rights again with you and after each legal right I would like for you to answer whether you understand it or not…. Your legal rights, Mr. Prysock, is [sic] follows: Number One, you have the right to remain silent. This means you don’t have to talk to me at all unless you so desire. Do you understand this?
“Randall P.: Yeh.
“Sgt. Byrd: If you give up your right to remain silent, anything you say can and will be used as evidence against you in a court of law. Do you understand this?
“Randall P.: Yes.
“Sgt. Byrd: You have the right to talk to a lawyer before you are questioned, have him present with you while you are being questioned, and all during the questioning. Do you understand this?
“Randall P.: Yes.
“Sgt. Byrd: You also, being a juvenile, you have the right to have your parents present, which they are. Do you understand this?
“Randall P.: Yes.
“Sgt. Byrd: Even if they weren’t here, you’d have this right. Do you understand this?
“Randall P.: Yes.
“Sgt. Byrd: You all, uh,—if,—you have the right to have a lawyer appointed to represent you at no cost to yourself. Do you understand this?
“Randall P.: Yes.
“Sgt. Byrd: Now, having all these legal rights in mind, do you wish to talk to me at this time?
“Randall P.: Yes.”
At this point, at the request of Mrs. Prysock, a conversation took place with the tape recorder turned off. According to Sgt. Byrd, Mrs. Prysock asked if respondent could still have an attorney at a later time if he gave a statement now without one. Sgt. Byrd assured Mrs. Prysock that respondent would have an attorney when he went to court and that “he could have one at this time if he wished one.”
At trial in the Superior Court of Tulare County the court denied respondent’s motion to suppress the taped statement. Respondent was convicted by a jury of first-degree murder with two special circumstances—torture and robbery. He was also convicted of robbery with the use of a dangerous weapon, burglary with the use of a deadly weapon, automobile theft, escape from a youth facility, and destruction of evidence.
The Court of Appeal for the Fifth Appellate District reversed respondent’s convictions and ordered a new trial because of what it thought to be error under Miranda. The Court of Appeal ruled that respondent’s recorded incriminating statements, given with his parents present, had to be excluded from consideration by the jury because respondent was not properly advised of his right to the services of a free attorney before and during interrogation. Although respondent was indisputably informed that he had “the right to talk to a lawyer before you are questioned, have him present with you while you are being questioned, and all during the questioning,” and further informed that he had “the right to have a lawyer appointed to represent you at no cost to yourself,” the Court of Appeal ruled that these warnings were inadequate because respondent was not explicitly informed of his right to have an attorney appointed before further questioning. The Court of Appeal stated that “[o]ne of [Miranda’s] virtues is its precise requirements which are so easily met.” The California Supreme Court denied a petition for hearing, with two justices dissenting.
This Court has never indicated that the “rigidity” of Miranda extends to the precise formulation of the warnings given a criminal defendant. This Court and others have stressed as one virtue of Miranda the fact that the giving of the warnings obviates the need for a case-by-case inquiry into the actual voluntariness of the admissions of the accused. Nothing in these observations suggests any desirable rigidity in the form of the required warnings.
Quite the contrary, Miranda itself indicated that no talismanic incantation was required to satisfy its strictures. The Court in that case stated that “[t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.”
[N]othing in the warnings given respondent suggested any limitation on the right to the presence of appointed counsel different from the clearly conveyed rights to a lawyer in general, including the right “to a lawyer before you are questioned, … while you are being questioned, and all during the questioning.”
It is clear that the police in this case fully conveyed to respondent his rights as required by Miranda. He was told of his right to have a lawyer present prior to and during interrogation, and his right to have a lawyer appointed at no cost if he could not afford one. These warnings conveyed to respondent his right to have a lawyer appointed if he could not afford one prior to and during interrogation. The Court of Appeal erred in holding that the warnings were inadequate simply because of the order in which they were given.
Because respondent was given the warnings required by Miranda, the decision of the California Court of Appeal to the contrary is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
* * *
The next case presented the Court with another deviation from the warning language set forth in Miranda.
Supreme Court of the United States
Jack R. Duckworth v. Gary James Eagan
Decided June 26, 1989 – 492 U.S. 195
Chief Justice REHNQUIST delivered the opinion of the Court.
Respondent confessed to stabbing a woman nine times after she refused to have sexual relations with him, and he was convicted of attempted murder. Before confessing, respondent was given warnings by the police, which included the advice that a lawyer would be appointed “if and when you go to court.” The United States Court of Appeals for the Seventh Circuit held that such advice did not comply with the requirements of Miranda v. Arizona. We disagree and reverse.
Late on May 16, 1982, respondent contacted a Chicago police officer he knew to report that he had seen the naked body of a dead woman lying on a Lake Michigan beach. Respondent denied any involvement in criminal activity. He then took several Chicago police officers to the beach, where the woman was crying for help. When she saw respondent, the woman exclaimed: “Why did you stab me? Why did you stab me?” Respondent told the officers that he had been with the woman earlier that night, but that they had been attacked by several men who abducted the woman in a van.
The next morning, after realizing that the crime had been committed in Indiana, the Chicago police turned the investigation over to the Hammond, Indiana, Police Department. Respondent repeated to the Hammond police officers his story that he had been attacked on the lakefront, and that the woman had been abducted by several men. After he filled out a battery complaint at a local police station, respondent agreed to go to the Hammond police headquarters for further questioning.
At about 11 a.m., the Hammond police questioned respondent. Before doing so, the police read to respondent a waiver form, entitled “Voluntary Appearance; Advice of Rights,” and they asked him to sign it. The form provided:
“Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you’ve talked to a lawyer.”
Respondent signed the form and repeated his exculpatory explanation for his activities of the previous evening.
Respondent was then placed in the “lock up” at the Hammond police headquarters. Some 29 hours later, at about 4 p.m. on May 18, the police again interviewed respondent. Before this questioning, one of the officers read the following waiver form to respondent:
[The waiver form presented the Miranda warnings in a standard way.]
Respondent read the form back to the officers and signed it. He proceeded to confess to stabbing the woman. The next morning, respondent led the officers to the Lake Michigan beach where they recovered the knife he had used in the stabbing and several items of clothing.
At trial, over respondent’s objection, the state court admitted his confession, his first statement denying any involvement in the crime, the knife, and the clothing. The jury found respondent guilty of attempted murder, but acquitted him of rape. He was sentenced to 35 years’ imprisonment. The conviction was upheld on appeal.
Respondent sought a writ of habeas corpus, claiming, inter alia, that his confession was inadmissible because the first waiver form did not comply with Miranda. The District Court denied the petition, holding that the record “clearly manifests adherence to Miranda … especially as to the so-called second statement.”
A divided United States Court of Appeals for the Seventh Circuit reversed. The majority held that the advice that counsel would be appointed “if and when you go to court,” which was included in the first warnings given to respondent, was “constitutionally defective because it denies an accused indigent a clear and unequivocal warning of the right to appointed counsel before any interrogation,” and “link[s] an indigent’s right to counsel before interrogation with a future event.” Turning to the admissibility of respondent’s confession, the majority thought that “as a result of the first warning, [respondent] arguably believed that he could not secure a lawyer during interrogation” and that the second warning “did not explicitly correct this misinformation.” It therefore remanded the case for a determination whether respondent had knowingly and intelligently waived his right to an attorney during the second interview.
We then granted certiorari, to resolve a conflict among the lower courts as to whether informing a suspect that an attorney would be appointed for him “if and when you go to court” renders Miranda warnings inadequate. We agree with the majority of the lower courts that it does not.
In Miranda itself, the Court said that “[t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.”
We think the initial warnings given to respondent touched all of the bases required by Miranda. The police told respondent that he had the right to remain silent, that anything he said could be used against him in court, that he had the right to speak to an attorney before and during questioning, that he had “this right to the advice and presence of a lawyer even if [he could] not afford to hire one,” and that he had the “right to stop answering at any time until [he] talked to a lawyer.” As noted, the police also added that they could not provide respondent with a lawyer, but that one would be appointed “if and when you go to court.” The Court of Appeals thought this “if and when you go to court” language suggested that “only those accused who can afford an attorney have the right to have one present before answering any questions,” and “implie[d] that if the accused does not ‘go to court,’ i.e.[,] the government does not file charges, the accused is not entitled to [counsel] at all.”
In our view, the Court of Appeals misapprehended the effect of the inclusion of “if and when you go to court” language in Miranda warnings. First, this instruction accurately described the procedure for the appointment of counsel in Indiana. Under Indiana law, counsel is appointed at the defendant’s initial appearance in court, and formal charges must be filed at or before that hearing. We think it must be relatively commonplace for a suspect, after receiving Miranda warnings, to ask when he will obtain counsel. The “if and when you go to court” advice simply anticipates that question. Second, Miranda does not require that attorneys be producible on call, but only that the suspect be informed, as here, that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one. The Court in Miranda emphasized that it was not suggesting that “each police station must have a ‘station house lawyer’ present at all times to advise prisoners.” If the police cannot provide appointed counsel, Miranda requires only that the police not question a suspect unless he waives his right to counsel. Here, respondent did just that.
Justice MARSHALL, with whom Justice BRENNAN joins, and with whom Justice BLACKMUN and Justice STEVENS join, dissenting.
The majority holds today that a police warning advising a suspect that he is entitled to an appointed lawyer only “if and when he goes to court” satisfies the requirements of Miranda v. Arizona. The majority reaches this result by seriously mischaracterizing that decision. Under Miranda, a police warning must “clearly infor[m]” a suspect taken into custody “that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” A warning qualified by an “if and when you go to court” caveat does nothing of the kind; instead, it leads the suspect to believe that a lawyer will not be provided until some indeterminate time in the future after questioning. I refuse to acquiesce in the continuing debasement of this historic precedent and therefore dissent.
The Endurance of Miranda in the Face of Criticism
In 2000, the Court considered whether to abolish the Miranda Rule. Miranda had inspired intense criticism, including from William H. Rehnquist, who had been an assistant attorney general in the Nixon administration soon after Miranda was decided. He wrote in 1969 that “the court is now committed to the proposition that relevant, competent, uncoerced statements of the defendant will not be admissible at his trial unless an elaborate set of warnings be given, which is very likely to have the effect of preventing a defendant from making any statement at all.” See Victor Li, “50-Year Story of the Miranda Warning Has the Twists of a Cop Show,” ABA Journal (Aug. 2016). Three decades later, Rehnquist was Chief Justice of the United States, with the ability to shape constitutional law instead of merely commenting on it.
Supreme Court of the United States
Charles Thomas Dickerson v. United States
Decided June 26, 2000 – 530 U.S. 428
Chief Justice REHNQUIST delivered the opinion of the Court.
In Miranda v. Arizona, we held that certain warnings must be given before a suspect’s statement made during custodial interrogation could be admitted in evidence. In the wake of that decision, Congress enacted 18 U.S.C. § 3501, which in essence laid down a rule that the admissibility of such statements should turn only on whether or not they were voluntarily made. We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves. We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts.
Petitioner Dickerson was indicted for bank robbery, conspiracy to commit bank robbery, and using a firearm in the course of committing a crime of violence, all in violation of the applicable provisions of Title 18 of the United States Code. Before trial, Dickerson moved to suppress a statement he had made at a Federal Bureau of Investigation field office, on the grounds that he had not received “Miranda warnings” before being interrogated. The District Court granted his motion to suppress, and the Government took an interlocutory appeal to the United States Court of Appeals for the Fourth Circuit. That court, by a divided vote, reversed the District Court’s suppression order. It agreed with the District Court’s conclusion that petitioner had not received Miranda warnings before making his statement. But it went on to hold that § 3501, which in effect makes the admissibility of statements such as Dickerson’s turn solely on whether they were made voluntarily, was satisfied in this case. It then concluded that our decision in Miranda was not a constitutional holding, and that, therefore, Congress could by statute have the final say on the question of admissibility.
Because of the importance of the questions raised by the Court of Appeals’ decision, we granted certiorari and now reverse.
Given § 3501’s express designation of voluntariness as the touchstone of admissibility, its omission of any warning requirement, and the instruction for trial courts to consider a nonexclusive list of factors relevant to the circumstances of a confession, we agree with the Court of Appeals that Congress intended by its enactment to overrule Miranda. Because of the obvious conflict between our decision in Miranda and § 3501, we must address whether Congress has constitutional authority to thus supersede Miranda. If Congress has such authority, § 3501’s totality-of-the-circumstances approach must prevail over Miranda’s requirement of warnings; if not, that section must yield to Miranda’s more specific requirements.
The law in this area is clear. This Court has supervisory authority over the federal courts, and we may use that authority to prescribe rules of evidence and procedure that are binding in those tribunals. However, the power to judicially create and enforce nonconstitutional “rules of procedure and evidence for the federal courts exists only in the absence of a relevant Act of Congress.” Congress retains the ultimate authority to modify or set aside any judicially created rules of evidence and procedure that are not required by the Constitution.
But Congress may not legislatively supersede our decisions interpreting and applying the Constitution. This case therefore turns on whether the Miranda Court announced a constitutional rule or merely exercised its supervisory authority to regulate evidence in the absence of congressional direction. [T]he Court of Appeals concluded that the protections announced in Miranda are not constitutionally required.
We disagree with the Court of Appeals’ conclusion, although we concede that there is language in some of our opinions that supports the view taken by that court. But first and foremost of the factors on the other side—that Miranda is a constitutional decision—is that both Miranda and two of its companion cases applied the rule to proceedings in state courts—to wit, Arizona, California, and New York. Since that time, we have consistently applied Miranda’s rule to prosecutions arising in state courts. It is beyond dispute that we do not hold a supervisory power over the courts of the several States. With respect to proceedings in state courts, our “authority is limited to enforcing the commands of the United States Constitution.”
Additional support for our conclusion that Miranda is constitutionally based is found in the Miranda Court’s invitation for legislative action to protect the constitutional right against coerced self-incrimination. After discussing the “compelling pressures” inherent in custodial police interrogation, the Miranda Court concluded that, “[i]n order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.” However, the Court emphasized that it could not foresee “the potential alternatives for protecting the privilege which might be devised by Congress or the States,” and it accordingly opined that the Constitution would not preclude legislative solutions that differed from the prescribed Miranda warnings but which were “at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it.”
Miranda requires procedures that will warn a suspect in custody of his right to remain silent and which will assure the suspect that the exercise of that right will be honored. [Section] 3501 explicitly eschews a requirement of preinterrogation warnings in favor of an approach that looks to the administration of such warnings as only one factor in determining the voluntariness of a suspect’s confession. The additional remedies cited by amicus do not, in our view, render them, together with § 3501, an adequate substitute for the warnings required by Miranda.
[W]e need not go further than Miranda to decide this case. In Miranda, the Court noted that reliance on the traditional totality-of-the-circumstances test raised a risk of overlooking an involuntary custodial confession, a risk that the Court found unacceptably great when the confession is offered in the case in chief to prove guilt. The Court therefore concluded that something more than the totality test was necessary. [Section] 3501 reinstates the totality test as sufficient. Section 3501 therefore cannot be sustained if Miranda is to remain the law.
Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now. While “‘stare decisis is not an inexorable command,’” particularly when we are interpreting the Constitution, “even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some ‘special justification.’”
We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. While we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, we do not believe that this has happened to the Miranda decision. If anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision’s core ruling that unwarned statements may not be used as evidence in the prosecution’s case in chief.
The disadvantage of the Miranda rule is that statements which may be by no means involuntary, made by a defendant who is aware of his “rights,” may nonetheless be excluded and a guilty defendant go free as a result. But experience suggests that the totality-of-the-circumstances test which § 3501 seeks to revive is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner.
In sum, we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively. Following the rule of stare decisis, we decline to overrule Miranda ourselves. The judgment of the Court of Appeals is therefore [r]eversed.
Justice SCALIA, with whom Justice THOMAS joins, dissenting.
Those to whom judicial decisions are an unconnected series of judgments that produce either favored or disfavored results will doubtless greet today’s decision as a paragon of moderation, since it declines to overrule Miranda v. Arizona. Those who understand the judicial process will appreciate that today’s decision is not a reaffirmation of Miranda, but a radical revision of the most significant element of Miranda (as of all cases): the rationale that gives it a permanent place in our jurisprudence.
Marbury v. Madison held that an Act of Congress will not be enforced by the courts if what it prescribes violates the Constitution of the United States. That was the basis on which Miranda was decided. One will search today’s opinion in vain, however, for a statement (surely simple enough to make) that what 18 U.S.C. § 3501 prescribes—the use at trial of a voluntary confession, even when a Miranda warning or its equivalent has failed to be given—violates the Constitution. The reason the statement does not appear is not only (and perhaps not so much) that it would be absurd, inasmuch as § 3501 excludes from trial precisely what the Constitution excludes from trial, viz., compelled confessions; but also that Justices whose votes are needed to compose today’s majority are on record as believing that a violation of Miranda is not a violation of the Constitution. And so, to justify today’s agreed-upon result, the Court must adopt a significant new, if not entirely comprehensible, principle of constitutional law. As the Court chooses to describe that principle, statutes of Congress can be disregarded, not only when what they prescribe violates the Constitution, but when what they prescribe contradicts a decision of this Court that “announced a constitutional rule.” [T]he only thing that can possibly mean in the context of this case is that this Court has the power, not merely to apply the Constitution but to expand it, imposing what it regards as useful “prophylactic” restrictions upon Congress and the States. That is an immense and frightening antidemocratic power, and it does not exist.
It takes only a small step to bring today’s opinion out of the realm of power-judging and into the mainstream of legal reasoning: The Court need only go beyond its carefully couched iterations that “Miranda is a constitutional decision,” that “Miranda is constitutionally based,” that Miranda has “constitutional underpinnings,” and come out and say quite clearly: “We reaffirm today that custodial interrogation that is not preceded by Miranda warnings or their equivalent violates the Constitution of the United States.” It cannot say that, because a majority of the Court does not believe it. The Court therefore acts in plain violation of the Constitution when it denies effect to this Act of Congress.
I dissent from today’s decision, and, until § 3501 is repealed, will continue to apply it in all cases where there has been a sustainable finding that the defendant’s confession was voluntary.
Notes, Comments, and Questions
When given the opportunity, the Court did not overrule Miranda. Do you agree that Miranda warnings should still be required? Why or why not?
Our next chapters explore two important questions left open by Miranda—how the Court would define “custody” and how it would define “interrogation.” Because the Miranda Rule applies only during “custodial interrogation,” each of these definitions is essential to applying the rule. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/03%3A_Interrogations/3.02%3A_Chapter_23_-_The_Miranda_Rule.txt |
INTERROGATIONS
The Miranda Rule: What Is Custody?
The Miranda Rule applies only during “custodial interrogation.” Therefore, unless a suspect is both (1) “in custody” and (2) being “interrogated,” police need not provide the warnings described in Miranda. In this chapter, we consider how the Court has defined “custody” in cases applying the Miranda Rule. We also review some of the literature evaluating the practical effects of the doctrine on suspects and police.
In Miranda, the Court wrote: “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Subsequent cases, however, have strayed from the expansive definition of “custody” implied by the words “deprived of his freedom of action in any significant way.”
Students should note that the definition of “custody” under Miranda differs from the definition of a “seizure” for Fourth Amendment purposes. In other words, a person can be “seized” (or “detained”) but not be in a situation in which Miranda warnings are required before police may begin interrogation. Yet Fourth Amendment law remains a useful touchstone because if a person is not “seized”—that is, if a reasonable person in her situation would have felt free to leave—then it will be difficult to argue that she was “in custody” for Miranda purposes.
Supreme Court of the United States
Oregon v. Carl Ray Mathiason
Jan. 25, 1977 – 429 U.S. 492
PER CURIAM.
Respondent Carl Mathiason was convicted of first-degree burglary after a bench trial in which his confession was critical to the State’s case. At trial he moved to suppress the confession as the fruit of questioning by the police not preceded by the warnings required in Miranda v. Arizona. The trial court refused to exclude the confession because it found that Mathiason was not in custody at the time of the confession.
The Oregon Court of Appeals affirmed respondent’s conviction, but on his petition for review in the Supreme Court of Oregon that court by a divided vote reversed the conviction. It found that although Mathiason had not been arrested or otherwise formally detained, “the interrogation took place in a ‘coercive environment’” of the sort to which Miranda was intended to apply. The State of Oregon has petitioned for certiorari to review the judgment of the Supreme Court of Oregon. We think that court has read Miranda too broadly, and we therefore reverse its judgment.
The Supreme Court of Oregon described the factual situation surrounding the confession as follows:
“An officer of the State Police investigated a theft at a residence near Pendleton. He asked the lady of the house which had been burglarized if she suspected anyone. She replied that the defendant was the only one she could think of. The defendant was a parolee and a ‘close associate’ of her son. The officer tried to contact defendant on three or four occasions with no success. Finally, about 25 days after the burglary, the officer left his card at defendant’s apartment with a note asking him to call because ‘I’d like to discuss something with you.’ The next afternoon the defendant did call. The officer asked where it would be convenient to meet. The defendant had no preference; so the officer asked if the defendant could meet him at the state patrol office in about an hour and a half, about 5:00 p.m. The patrol office was about two blocks from defendant’s apartment. The building housed several state agencies.”
“The officer met defendant in the hallway, shook hands and took him into an office. The defendant was told he was not under arrest. The door was closed. The two sat across a desk. The police radio in another room could be heard. The officer told defendant he wanted to talk to him about a burglary and that his truthfulness would possibly be considered by the district attorney or judge. The officer further advised that the police believed defendant was involved in the burglary and (falsely stated that) defendant’s fingerprints were found at the scene. The defendant sat for a few minutes and then said he had taken the property. This occurred within five minutes after defendant had come to the office. The officer then advised defendant of his Miranda rights and took a taped confession.”
“At the end of the taped conversation the officer told defendant he was not arresting him at this time; he was released to go about his job and return to his family. The officer said he was referring the case to the district attorney for him to determine whether criminal charges would be brought. It was 5:30 p.m. when the defendant left the office.”
“The officer gave all the testimony relevant to this issue. The defendant did not take the stand either at the hearing on the motion to suppress or at the trial.”
Our decision in Miranda set forth rules of police procedure applicable to “custodial interrogation.” “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Subsequently we have found the Miranda principle applicable to questioning which takes place in a prison setting during a suspect’s term of imprisonment on a separate offense, and to questioning taking place in a suspect’s home, after he has been arrested and is no longer free to go where he pleases.
In the present case, however, there is no indication that the questioning took place in a context where respondent’s freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a ½-hour interview respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody “or otherwise deprived of his freedom of action in any significant way.”
Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a “coercive environment.” Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.” It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.
The officer’s false statement about having discovered Mathiason’s fingerprints at the scene was found by the Supreme Court of Oregon to be another circumstance contributing to the coercive environment which makes the Miranda rationale applicable. Whatever relevance this fact may have to other issues in the case, it has nothing to do with whether respondent was in custody for purposes of the Miranda rule.
The petition for certiorari is granted, the judgment of the Oregon Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.
Mr. Justice MARSHALL, dissenting.
The respondent in this case was interrogated behind closed doors at police headquarters in connection with a burglary investigation. He had been named by the victim of the burglary as a suspect, and was told by the police that they believed he was involved. He was falsely informed that his fingerprints had been found at the scene, and in effect was advised that by cooperating with the police he could help himself. Not until after he had confessed was he given the warnings set forth in Miranda v. Arizona.
The Court today holds that for constitutional purposes all this is irrelevant because respondent had not “‘been taken into custody or otherwise deprived of his freedom of action in any significant way.’” I do not believe that such a determination is possible on the record before us. It is true that respondent was not formally placed under arrest, but surely formalities alone cannot control. At the very least, if respondent entertained an objectively reasonable belief that he was not free to leave during the questioning, then he was “deprived of his freedom of action in a significant way.” Plainly the respondent could have so believed, after being told by the police that they thought he was involved in a burglary and that his fingerprints had been found at the scene. Yet the majority is content to note that “there is no indication that … respondent’s freedom to depart was restricted in any way,” as if a silent record (and no state-court findings) means that the State has sustained its burden of demonstrating that respondent received his constitutional due.
More fundamentally, however, I cannot agree with the Court’s conclusion that if respondent were not in custody no warnings were required. I recognize that Miranda is limited to custodial interrogations, but that is because [] the facts in the Miranda cases raised only this “narrow issue.”
In my view, even if respondent were not in custody, the coercive elements in the instant case were so pervasive as to require Miranda-type warnings. Respondent was interrogated in “privacy” and in “unfamiliar surroundings,” factors on which Miranda places great stress. The investigation had focused on respondent. And respondent was subjected to some of the “deceptive stratagems,” which called forth the Miranda decision. I therefore agree with the Oregon Supreme Court that to excuse the absence of warnings given these facts is “contrary to the rationale expressed in Miranda.”
The privilege against self-incrimination “has always been ‘as broad as the mischief against which it seeks to guard.’” Today’s decision means, however, that the Fifth Amendment privilege does not provide full protection against mischiefs equivalent to, but different from, custodial interrogation. I respectfully dissent.
Notes, Comments, and Questions
We have seen the Court’s preference for objective tests—those based upon what a “reasonable” person would have done or believed in certain circumstances—over subjective tests based on what a specific person was actually thinking. When deciding whether Sylvia Mendenhall was detained (Chapter 19), for example, the question was not whether she felt free to leave but instead was whether a hypothetical reasonable person in her situation at the airport would have felt free to leave. Similar analysis pervades decisions about whether consent for searches was validly obtained.
Further, the Court has often seemed to adopt a one-size-fits-all concept of the reasonable person. To return to Mendenhall: The Court considered briefly that she was “22 years old and had not been graduated from high school … [and was] a female and [Black]” interacting with white police officers. Nonetheless, the Court’s “reasonable person” analysis paid little attention to these factors, finding them “not irrelevant” but not especially important. Critics have suggested (as they have in other legal contexts applying “reasonable person” standards, such as tort law) that the beliefs and behaviors of a reasonable person will depend significantly on factors such as race, sex, education, age, and social class, to which the Court gives little attention.
In the next case, the Court considered the potential relevance of someone’s age to the question of whether he was “in custody” for purposes of Miranda. The result differed from the common one-size-fits-all concept of “reasonable” that the Court had previously applied in Miranda cases.
Supreme Court of the United States
J.D.B. v. North Carolina
Decided June 16, 2011 – 564 U.S. 261
Justice SOTOMAYOR delivered the opinion of the Court.
This case presents the question whether the age of a child subjected to police questioning is relevant to the custody analysis of Miranda v. Arizona. It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child’s age properly informs the Miranda custody analysis.
A
Petitioner J.D.B. was a 13-year-old, seventh-grade student attending class at Smith Middle School in Chapel Hill, North Carolina when he was removed from his classroom by a uniformed police officer, escorted to a closed-door conference room, and questioned by police for at least half an hour.
This was the second time that police questioned J.D.B. in the span of a week. Five days earlier, two home break-ins occurred, and various items were stolen. Police stopped and questioned J.D.B. after he was seen behind a residence in the neighborhood where the crimes occurred. That same day, police also spoke to J.D.B.’s grandmother—his legal guardian—as well as his aunt.
Police later learned that a digital camera matching the description of one of the stolen items had been found at J.D.B.’s middle school and seen in J.D.B.’s possession. Investigator DiCostanzo, the juvenile investigator with the local police force who had been assigned to the case, went to the school to question J.D.B. Upon arrival, DiCostanzo informed the uniformed police officer on detail to the school (a so-called school resource officer), the assistant principal, and an administrative intern that he was there to question J.D.B. about the break-ins. Although DiCostanzo asked the school administrators to verify J.D.B.’s date of birth, address, and parent contact information from school records, neither the police officers nor the school administrators contacted J.D.B.’s grandmother.
The uniformed officer interrupted J.D.B.’s afternoon social studies class, removed J.D.B. from the classroom, and escorted him to a school conference room. There, J.D.B. was met by DiCostanzo, the assistant principal, and the administrative intern. The door to the conference room was closed. With the two police officers and the two administrators present, J.D.B. was questioned for the next 30 to 45 minutes. Prior to the commencement of questioning, J.D.B. was given neither Miranda warnings nor the opportunity to speak to his grandmother. Nor was he informed that he was free to leave the room.
Questioning began with small talk—discussion of sports and J.D.B.’s family life. DiCostanzo asked, and J.D.B. agreed, to discuss the events of the prior weekend. Denying any wrongdoing, J.D.B. explained that he had been in the neighborhood where the crimes occurred because he was seeking work mowing lawns. DiCostanzo pressed J.D.B. for additional detail about his efforts to obtain work; asked J.D.B. to explain a prior incident, when one of the victims returned home to find J.D.B. behind her house; and confronted J.D.B. with the stolen camera. The assistant principal urged J.D.B. to “do the right thing,” warning J.D.B. that “the truth always comes out in the end.”
Eventually, J.D.B. asked whether he would “still be in trouble” if he returned the “stuff.” In response, DiCostanzo explained that return of the stolen items would be helpful, but “this thing is going to court” regardless. DiCostanzo then warned that he may need to seek a secure custody order if he believed that J.D.B. would continue to break into other homes. When J.D.B. asked what a secure custody order was, DiCostanzo explained that “it’s where you get sent to juvenile detention before court.”
After learning of the prospect of juvenile detention, J.D.B. confessed that he and a friend were responsible for the break-ins. DiCostanzo only then informed J.D.B. that he could refuse to answer the investigator’s questions and that he was free to leave. Asked whether he understood, J.D.B. nodded and provided further detail, including information about the location of the stolen items. Eventually J.D.B. wrote a statement, at DiCostanzo’s request. When the bell rang indicating the end of the schoolday, J.D.B. was allowed to leave to catch the bus home.
B
Two juvenile petitions were filed against J.D.B., each alleging one count of breaking and entering and one count of larceny. J.D.B.’s public defender moved to suppress his statements and the evidence derived therefrom, arguing that suppression was necessary because J.D.B. had been “interrogated by police in a custodial setting without being afforded Miranda warning[s]” and because his statements were involuntary under the totality of the circumstances test. After a suppression hearing at which DiCostanzo and J.D.B. testified, the trial court denied the motion, deciding that J.D.B. was not in custody at the time of the schoolhouse interrogation and that his statements were voluntary. As a result, J.D.B. entered a transcript of admission to all four counts, renewing his objection to the denial of his motion to suppress, and the court adjudicated J.D.B. delinquent.
A divided panel of the North Carolina Court of Appeals affirmed. The North Carolina Supreme Court held, over two dissents, that J.D.B. was not in custody when he confessed, “declin[ing] to extend the test for custody to include consideration of the age … of an individual subjected to questioning by police.” We granted certiorari to determine whether the Miranda custody analysis includes consideration of a juvenile suspect’s age.
A
Any police interview of an individual suspected of a crime has “coercive aspects to it.” Only those interrogations that occur while a suspect is in police custody, however, “heighte[n] the risk” that statements obtained are not the product of the suspect’s free choice.
By its very nature, custodial police interrogation entails “inherently compelling pressures.” Even for an adult, the physical and psychological isolation of custodial interrogation can “undermine the individual’s will to resist and … compel him to speak where he would not otherwise do so freely.” Indeed, the pressure of custodial interrogation is so immense that it “can induce a frighteningly high percentage of people to confess to crimes they never committed.” That risk is all the more troubling—and recent studies suggest, all the more acute—when the subject of custodial interrogation is a juvenile.
Recognizing that the inherently coercive nature of custodial interrogation “blurs the line between voluntary and involuntary statements,” this Court in Miranda adopted a set of prophylactic measures designed to safeguard the constitutional guarantee against self-incrimination. Because these measures protect the individual against the coercive nature of custodial interrogation, they are required “‘only where there has been such a restriction on a person’s freedom as to render him “in custody.”’” As we have repeatedly emphasized, whether a suspect is “in custody” is an objective inquiry.
The benefit of the objective custody analysis is that it is “designed to give clear guidance to the police.”
B
The State and its amici contend that a child’s age has no place in the custody analysis, no matter how young the child subjected to police questioning. We cannot agree. In some circumstances, a child’s age “would have affected how a reasonable person” in the suspect’s position “would perceive his or her freedom to leave.” That is, a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go. We think it clear that courts can account for that reality without doing any damage to the objective nature of the custody analysis.
A child’s age is far “more than a chronological fact.” It is a fact that “generates commonsense conclusions about behavior and perception.” Such conclusions apply broadly to children as a class. And, they are self-evident to anyone who was a child once himself, including any police officer or judge.
Time and again, this Court has drawn these commonsense conclusions for itself. We have observed that children “generally are less mature and responsible than adults,” that they “often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,” that they “are more vulnerable or susceptible to … outside pressures” than adults, and so on. Addressing the specific context of police interrogation, we have observed that events that “would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens.” Describing no one child in particular, these observations restate what “any parent knows”—indeed, what any person knows—about children generally.
Our various statements to this effect are far from unique. The law has historically reflected the same assumption that children characteristically lack the capacity to exercise mature judgment and possess only an incomplete ability to understand the world around them. Like this Court’s own generalizations, the legal disqualifications placed on children as a class—e.g., limitations on their ability to alienate property, enter a binding contract enforceable against them, and marry without parental consent—exhibit the settled understanding that the differentiating characteristics of youth are universal.
Indeed, even where a “reasonable person” standard otherwise applies, the common law has reflected the reality that children are not adults. In negligence suits, for instance, where liability turns on what an objectively reasonable person would do in the circumstances, “[a]ll American jurisdictions accept the idea that a person’s childhood is a relevant circumstance” to be considered.
As this discussion establishes, “[o]ur history is replete with laws and judicial recognition” that children cannot be viewed simply as miniature adults. We see no justification for taking a different course here[,] [s]o long as the child’s age was known to the officer at the time of the interview, or would have been objectively apparent to any reasonable officer. The same “wide basis of community experience” that makes it possible, as an objective matter, “to determine what is to be expected” of children in other contexts likewise makes it possible to know what to expect of children subjected to police questioning.
In other words, a child’s age differs from other personal characteristics that, even when known to police, have no objectively discernible relationship to a reasonable person’s understanding of his freedom of action. Precisely because childhood yields objective conclusions like those we have drawn ourselves—among others, that children are “most susceptible to influence” and “outside pressures,”—considering age in the custody analysis in no way involves a determination of how youth “subjectively affect[s] the mindset” of any particular child.
In fact, in many cases involving juvenile suspects, the custody analysis would be nonsensical absent some consideration of the suspect’s age. This case is a prime example. Were the court precluded from taking J.D.B.’s youth into account, it would be forced to evaluate the circumstances present here through the eyes of a reasonable person of average years. In other words, how would a reasonable adult understand his situation, after being removed from a seventh-grade social studies class by a uniformed school resource officer; being encouraged by his assistant principal to “do the right thing”; and being warned by a police investigator of the prospect of juvenile detention and separation from his guardian and primary caretaker? To describe such an inquiry is to demonstrate its absurdity. Neither officers nor courts can reasonably evaluate the effect of objective circumstances that, by their nature, are specific to children without accounting for the age of the child subjected to those circumstances.
Indeed, the effect of the schoolhouse setting cannot be disentangled from the identity of the person questioned. A student—whose presence at school is compulsory and whose disobedience at school is cause for disciplinary action—is in a far different position than, say, a parent volunteer on school grounds to chaperone an event, or an adult from the community on school grounds to attend a basketball game. Without asking whether the person “questioned in school” is a “minor,” the coercive effect of the schoolhouse setting is unknowable.
Reviewing the question de novo today, we hold that so long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test. This is not to say that a child’s age will be a determinative, or even a significant, factor in every case. It is, however, a reality that courts cannot simply ignore.
The question remains whether J.D.B. was in custody when police interrogated him. We remand for the state courts to address that question, this time taking account of all of the relevant circumstances of the interrogation, including J.D.B.’s age at the time. The judgment of the North Carolina Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.
Justice ALITO, with whom THE CHIEF JUSTICE, Justice SCALIA, and Justice THOMAS join, dissenting.
The Court’s decision in this case may seem on first consideration to be modest and sensible, but in truth it is neither. It is fundamentally inconsistent with one of the main justifications for the Miranda rule: the perceived need for a clear rule that can be easily applied in all cases. And today’s holding is not needed to protect the constitutional rights of minors who are questioned by the police.
Miranda’s prophylactic regime places a high value on clarity and certainty. Dissatisfied with the highly fact-specific constitutional rule against the admission of involuntary confessions, the Miranda Court set down rigid standards that often require courts to ignore personal characteristics that may be highly relevant to a particular suspect’s actual susceptibility to police pressure. This rigidity, however, has brought with it one of Miranda’s principal strengths—“the ease and clarity of its application” by law enforcement officials and courts. A key contributor to this clarity, at least up until now, has been Miranda’s objective reasonable-person test for determining custody.
Miranda’s custody requirement is based on the proposition that the risk of unconstitutional coercion is heightened when a suspect is placed under formal arrest or is subjected to some functionally equivalent limitation on freedom of movement. When this custodial threshold is reached, Miranda warnings must precede police questioning. But in the interest of simplicity, the custody analysis considers only whether, under the circumstances, a hypothetical reasonable person would consider himself to be confined.
Many suspects, of course, will differ from this hypothetical reasonable person. Some, including those who have been hardened by past interrogations, may have no need for Miranda warnings at all. And for other suspects—those who are unusually sensitive to the pressures of police questioning—Miranda warnings may come too late to be of any use. That is a necessary consequence of Miranda’s rigid standards, but it does not mean that the constitutional rights of these especially sensitive suspects are left unprotected. A vulnerable defendant can still turn to the constitutional rule against actual coercion and contend that that his confession was extracted against his will.
Today’s decision shifts the Miranda custody determination from a one-size-fits-all reasonable-person test into an inquiry that must account for at least one individualized characteristic—age—that is thought to correlate with susceptibility to coercive pressures. Age, however, is in no way the only personal characteristic that may correlate with pliability, and in future cases the Court will be forced to choose between two unpalatable alternatives. It may choose to limit today’s decision by arbitrarily distinguishing a suspect’s age from other personal characteristics—such as intelligence, education, occupation, or prior experience with law enforcement—that may also correlate with susceptibility to coercive pressures. Or, if the Court is unwilling to draw these arbitrary lines, it will be forced to effect a fundamental transformation of the Miranda custody test—from a clear, easily applied prophylactic rule into a highly fact-intensive standard resembling the voluntariness test that the Miranda Court found to be unsatisfactory.
For at least three reasons, there is no need to go down this road. First, many minors subjected to police interrogation are near the age of majority, and for these suspects the one-size-fits-all Miranda custody rule may not be a bad fit. Second, many of the difficulties in applying the Miranda custody rule to minors arise because of the unique circumstances present when the police conduct interrogations at school. The Miranda custody rule has always taken into account the setting in which questioning occurs, and accounting for the school setting in such cases will address many of these problems. Third, in cases like the one now before us, where the suspect is especially young, courts applying the constitutional voluntariness standard can take special care to ensure that incriminating statements were not obtained through coercion. Safeguarding the constitutional rights of minors does not require the extreme makeover of Miranda that today’s decision may portend.
Notes, Comments, and Questions
The dissent in J.D.B raised concerns that the majority’s decision will lead to a slippery slope. Should the court consider factors like race, sex, and socioeconomic status in the Miranda analysis? What are potential pros and cons of such an approach?
In addition, the dissent’s argument presents an opportunity to consider “slippery slope” arguments more generally.1 For a slippery slope claim to be compelling, the proponent must establish two things: First, the slope is truly slippery. Second, the place down at the bottom of the slope is a bad place to be. For example, when the Court decided Lawrence v. Texas, 539 U.S. 558 (2003), opponents of the decision attacked the majority’s reasoning, often employing slippery slope arguments.
The Court’s decision in Lawrence prohibits states from criminalizing consensual sexual activity among adults of the same sex (at least if the same activity would be lawful among opposite-sex couples). In his dissent, Justice Scalia decried the Court’s decision to overrule Bowers v. Hardwick, 478 U.S. 186 (1986), writing, “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.”
Supporters of the Lawrence decision responded to Scalia’s slippery slope arguments on two fronts. First, for some items, the slope was not actually slippery, they argued (for example, bigamy need not follow from ending criminal punishment for same-sex consensual sex). Second, for some items, such as same-sex marriage, the bottom of the slope looks great. (In other words, yes, the slope there is slippery, and that’s just fine.) Considering these two questions—is it slippery, and if so is that bad—will help students evaluate slippery slope arguments in various contexts.
Further, consider the prospect of a police department seeking to enforce criminal laws against adultery. What would be involved in seeking a warrant to search a house for evidence? How would communities react when homes were raided, and phones seized and searched, as officers sought proof of extramarital affairs?
Police investigations of masturbation seem even sillier. That said, the image of police establishing probable cause to search a house for proof of masturbation (“Well, Your Honor, a teenager lives there.”)—and then emerging triumphantly with seized evidence—illustrates the power entrusted in the legislature to decide what counts as a “crime.” Because tobacco is legal to possess and use on public sidewalks, a smoker can walk down the street without fear of being arrested, searched incident to the arrest, and then taken to jail, where officials can conduct far more invasive searches. Because marijuana is illegal to possess (and even in places where use has been legalized generally may not be smoked in public), a marijuana user walking down the street with a joint enjoys no such security.2
Ultimately, the application of every doctrine in this book depends upon the definition of what is and is not a crime, as well as what crimes (and persons) police choose to investigate.
The next case provides a stark example of the difference between “custody” under Miranda and the definition of a Fourth Amendment “seizure.” The Court has long held that when police stop a car, the driver is “seized” and can later object if the stop was unlawful. See Delaware v. Prouse, 440 U.S. 648, 653 (1979). In 2007, the Court announced the additional holding that everyone in the car—including passengers—is “seized” during a vehicle stop. See Brendlin v. California, 551 U.S. 249 (2007). The Court explained: “We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission. A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on ‘privacy and personal security’ does not normally (and did not here) distinguish between passenger and driver.”
Nonetheless, the Court held in Berkemer v. McCarty—in an opinion by Justice Marshall, normally among the Justices most supportive of expanding the scope of the Miranda Rule—that police need not recite Miranda warnings before questioning a driver during a vehicle stop. (The opinion was nearly unanimous. Justice Stevens wrote separately that the Court should not have reached the issue. No Justice disagreed on the merits.) Students should consider why the Court declined to apply the Miranda Rule to interrogations conducted during traffic stops.
Supreme Court of the United States
Harry J. Berkemer, Sheriff of Franklin County, Ohio v. Richard N. McCarty
Decided July 2, 1984 – 468 U.S. 420
Justice MARSHALL delivered the opinion of the Court.
This case presents two related questions: First, does our decision in Miranda v. Arizona govern the admissibility of statements made during custodial interrogation by a suspect accused of a misdemeanor traffic offense? Second, does the roadside questioning of a motorist detained pursuant to a traffic stop constitute custodial interrogation for the purposes of the doctrine enunciated in Miranda?
A
The parties have stipulated to the essential facts. On the evening of March 31, 1980, Trooper Williams of the Ohio State Highway Patrol observed respondent’s car weaving in and out of a lane on Interstate Highway 270. After following the car for two miles, Williams forced respondent to stop and asked him to get out of the vehicle. When respondent complied, Williams noticed that he was having difficulty standing. At that point, “Williams concluded that [respondent] would be charged with a traffic offense and, therefore, his freedom to leave the scene was terminated.” However, respondent was not told that he would be taken into custody. Williams then asked respondent to perform a field sobriety test, commonly known as a “balancing test.” Respondent could not do so without falling.
While still at the scene of the traffic stop, Williams asked respondent whether he had been using intoxicants. Respondent replied that “he had consumed two beers and had smoked several joints of marijuana a short time before.” Respondent’s speech was slurred, and Williams had difficulty understanding him. Williams thereupon formally placed respondent under arrest and transported him in the patrol car to the Franklin County Jail.
At the jail, respondent was given an intoxilyzer test to determine the concentration of alcohol in his blood. The test did not detect any alcohol whatsoever in respondent’s system. Williams then resumed questioning respondent in order to obtain information for inclusion in the State Highway Patrol Alcohol Influence Report. Respondent answered affirmatively a question whether he had been drinking. When then asked if he was under the influence of alcohol, he said, “I guess, barely.” Williams next asked respondent to indicate on the form whether the marihuana he had smoked had been treated with any chemicals. In the section of the report headed “Remarks,” respondent wrote, “No ang[el] dust or PCP in the pot. Rick McCarty.”
At no point in this sequence of events did Williams or anyone else tell respondent that he had a right to remain silent, to consult with an attorney, and to have an attorney appointed for him if he could not afford one.
B
Respondent was charged with operating a motor vehicle while under the influence of alcohol and/or drugs. Under Ohio law, that offense is a first-degree misdemeanor and is punishable by fine or imprisonment for up to six months. Incarceration for a minimum of three days is mandatory.
Respondent moved to exclude the various incriminating statements he had made to Trooper Williams on the ground that introduction into evidence of those statements would violate the Fifth Amendment insofar as he had not been informed of his constitutional rights prior to his interrogation. When the trial court denied the motion, respondent pleaded “no contest” and was found guilty. He was sentenced to 90 days in jail, 80 of which were suspended, and was fined \$300, \$100 of which were suspended.
On appeal to the Franklin County Court of Appeals, respondent renewed his constitutional claim. Relying on a prior decision by the Ohio Supreme Court, which held that the rule announced in Miranda “is not applicable to misdemeanors,” the Court of Appeals rejected respondent’s argument and affirmed his conviction. The Ohio Supreme Court dismissed respondent’s appeal on the ground that it failed to present a “substantial constitutional question.”
Respondent then filed an action for a writ of habeas corpus in the District Court for the Southern District of Ohio. The District Court dismissed the petition, holding that “Miranda warnings do not have to be given prior to in custody interrogation of a suspect arrested for a traffic offense.”
A divided panel of the Court of Appeals for the Sixth Circuit reversed, holding that “Miranda warnings must be given to all individuals prior to custodial interrogation, whether the offense investigated be a felony or a misdemeanor traffic offense.” In applying this principle to the facts of the case, the Court of Appeals distinguished between the statements made by respondent before and after his formal arrest. The postarrest statements, the court ruled, were plainly inadmissible; because respondent was not warned of his constitutional rights prior to or “[a]t the point that Trooper Williams took [him] to the police station,” his ensuing admissions could not be used against him. The court’s treatment of respondent’s prearrest statements was less clear. It eschewed a holding that “the mere stopping of a motor vehicle triggers Miranda” but did not expressly rule that the statements made by respondent at the scene of the traffic stop could be used against him. In the penultimate paragraph of its opinion, the court asserted that “[t]he failure to advise [respondent] of his constitutional rights rendered at least some of his statements inadmissible,” suggesting that the court was uncertain as to the status of the prearrest confessions. “Because [respondent] was convicted on inadmissible evidence,” the court deemed it necessary to vacate his conviction and order the District Court to issue a writ of habeas corpus. However, the Court of Appeals did not specify which statements, if any, could be used against respondent in a retrial.
We granted certiorari to resolve confusion in the federal and state courts regarding the applicability of our ruling in Miranda to interrogations involving minor offenses and to questioning of motorists detained pursuant to traffic stops.
II
In the years since the decision in Miranda, we have frequently reaffirmed the central principle established by that case: if the police take a suspect into custody and then ask him questions without informing him of the rights enumerated above, his responses cannot be introduced into evidence to establish his guilt.
Petitioner asks us to carve an exception out of the foregoing principle. When the police arrest a person for allegedly committing a misdemeanor traffic offense and then ask him questions without telling him his constitutional rights, petitioner argues, his responses should be admissible against him. We cannot agree.
One of the principal advantages of the doctrine that suspects must be given warnings before being interrogated while in custody is the clarity of that rule. The exception to Miranda proposed by petitioner would substantially undermine this crucial advantage of the doctrine. The police often are unaware when they arrest a person whether he may have committed a misdemeanor or a felony. Consider, for example, the reasonably common situation in which the driver of a car involved in an accident is taken into custody. Under Ohio law, both driving while under the influence of intoxicants and negligent vehicular homicide are misdemeanors, while reckless vehicular homicide is a felony. When arresting a person for causing a collision, the police may not know which of these offenses he may have committed. Indeed, the nature of his offense may depend upon circumstances unknowable to the police, such as whether the suspect has previously committed a similar offense or has a criminal record of some other kind. It may even turn upon events yet to happen, such as whether a victim of the accident dies. It would be unreasonable to expect the police to make guesses as to the nature of the criminal conduct at issue before deciding how they may interrogate the suspect.
Equally importantly, the doctrinal complexities that would confront the courts if we accepted petitioner’s proposal would be Byzantine. Difficult questions quickly spring to mind: For instance, investigations into seemingly minor offenses sometimes escalate gradually into investigations into more serious matters; at what point in the evolution of an affair of this sort would the police be obliged to give Miranda warnings to a suspect in custody? What evidence would be necessary to establish that an arrest for a misdemeanor offense was merely a pretext to enable the police to interrogate the suspect (in hopes of obtaining information about a felony) without providing him the safeguards prescribed by Miranda? The litigation necessary to resolve such matters would be time-consuming and disruptive of law enforcement. And the end result would be an elaborate set of rules, interlaced with exceptions and subtle distinctions, discriminating between different kinds of custodial interrogations. Neither the police nor criminal defendants would benefit from such a development.
We do not suggest that there is any reason to think improper efforts were made in this case to induce respondent to make damaging admissions. More generally, we have no doubt that, in conducting most custodial interrogations of persons arrested for misdemeanor traffic offenses, the police behave responsibly and do not deliberately exert pressures upon the suspect to confess against his will. But the same might be said of custodial interrogations of persons arrested for felonies. The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive suspects into confessing, to relieve the “‘inherently compelling pressures’” generated by the custodial setting itself, “‘which work to undermine the individual’s will to resist,’” and as much as possible to free courts from the task of scrutinizing individual cases to try to determine, after the fact, whether particular confessions were voluntary. Those purposes are implicated as much by in-custody questioning of persons suspected of misdemeanors as they are by questioning of persons suspected of felonies.
Petitioner’s second argument is that law enforcement would be more expeditious and effective in the absence of a requirement that persons arrested for traffic offenses be informed of their rights. Again, we are unpersuaded. The occasions on which the police arrest and then interrogate someone suspected only of a misdemeanor traffic offense are rare. The police are already well accustomed to giving Miranda warnings to persons taken into custody. Adherence to the principle that all suspects must be given such warnings will not significantly hamper the efforts of the police to investigate crimes.
We hold therefore that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which he was arrested.
The implication of this holding is that the Court of Appeals was correct in ruling that the statements made by respondent at the County Jail were inadmissible. There can be no question that respondent was “in custody” at least as of the moment he was formally placed under arrest and instructed to get into the police car. Because he was not informed of his constitutional rights at that juncture, respondent’s subsequent admissions should not have been used against him.
III
To assess the admissibility of the self-incriminating statements made by respondent prior to his formal arrest, we are obliged to address a second issue concerning the scope of our decision in Miranda: whether the roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered “custodial interrogation.” Respondent urges that it should, on the ground that Miranda by its terms applies whenever “a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Petitioner contends that a holding that every detained motorist must be advised of his rights before being questioned would constitute an unwarranted extension of the Miranda doctrine.
It must be acknowledged at the outset that a traffic stop significantly curtails the “freedom of action” of the driver and the passengers, if any, of the detained vehicle. Under the law of most States, it is a crime either to ignore a policeman’s signal to stop one’s car or, once having stopped, to drive away without permission. Certainly few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so. Partly for these reasons, we have long acknowledged that “stopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of [the Fourth] Amendmen[t], even though the purpose of the stop is limited and the resulting detention quite brief.”
However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized by respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated. Thus, we must decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.
Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced “to speak where he would not otherwise do so freely.” First, detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority of roadside detentions last only a few minutes. A motorist’s expectations, when he sees a policeman’s light flashing behind him, are that he will be obliged to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may then be given a citation, but that in the end he most likely will be allowed to continue on his way. In this respect, questioning incident to an ordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek.
Second, circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police. To be sure, the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to questions. But other aspects of the situation substantially offset these forces. Perhaps most importantly, the typical traffic stop is public, at least to some degree. Passersby, on foot or in other cars, witness the interaction of officer and motorist. This exposure to public view both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the motorist’s fear that, if he does not cooperate, he will be subjected to abuse. The fact that the detained motorist typically is confronted by only one or at most two policemen further mutes his sense of vulnerability. In short, the atmosphere surrounding an ordinary traffic stop is substantially less “police dominated” than that surrounding the kinds of interrogation at issue in Miranda itself and in the subsequent cases in which we have applied Miranda.
In both of these respects, the usual traffic stop is more analogous to a so-called “Terry stop” than to a formal arrest. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not “in custody” for the purposes of Miranda.
Turning to the case before us, we find nothing in the record that indicates that respondent should have been given Miranda warnings at any point prior to the time Trooper Williams placed him under arrest. For the reasons indicated above, we reject the contention that the initial stop of respondent’s car, by itself, rendered him “in custody.” And respondent has failed to demonstrate that, at any time between the initial stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest. Only a short period of time elapsed between the stop and the arrest. At no point during that interval was respondent informed that his detention would not be temporary. Although Trooper Williams apparently decided as soon as respondent stepped out of his car that respondent would be taken into custody and charged with a traffic offense, Williams never communicated his intention to respondent. A policeman’s unarticulated plan has no bearing on the question whether a suspect was “in custody” at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation. Nor do other aspects of the interaction of Williams and respondent support the contention that respondent was exposed to “custodial interrogation” at the scene of the stop. From aught that appears in the stipulation of facts, a single police officer asked respondent a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists. Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest.
We conclude, in short, that respondent was not taken into custody for the purposes of Miranda until Williams arrested him. Consequently, the statements respondent made prior to that point were admissible against him.
Accordingly, the judgment of the Court of Appeals is [a]ffirmed.
Notes, Comments, and Questions
As the Court noted near the end of its opinion in Berkemer, the definition of “custody” under Miranda does not include seizures conducted pursuant to Terry v. Ohio on the basis of reasonable suspicion.
The Practical Consequences of the Miranda Rule
Before exploring more of the Miranda doctrine—defining “interrogation,” learning what counts as a “waiver” of Miranda rights, and so on—we pause here to consider the practical effects of the doctrine. The Miranda Rule is now more than 50 years old, and debate rages on straightforward questions such as: (1) does the rule reduce the ability of police to obtain voluntary confessions,3 (2) does it provide any real benefits to suspects, or to society as a whole, such as by promoting meaningful free choice and protecting the dignity of suspects under interrogation, (3) has it affected the crime rate?
For example, Professor Paul Cassell has argued that Miranda has increased the crime rate while providing no compelling benefits to compensate.4 Challenging a perceived academic consensus that Miranda’s practical effects on crime-fighting have been “negligible,” Professor Cassell offers an empirical analysis of the number of confessions police never obtain because of Miranda. He includes a corresponding analysis of lost convictions—as well as lenient plea bargains necessitated by missing evidence. He begins with the “common sense” premise that “[s]urely fewer persons will confess if police must warn them of their right to silence, obtain affirmative waivers from them, and end the interrogation if they ask for a lawyer or for questioning to stop.” He also quotes the Miranda dissent of Justice White: “In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.”
While acknowledging that any empirical analysis must be a “sound estimate” rather than an exact calculation, Cassell argues that the costs are severe—well in excess of the insignificant harms commonly imagined by scholars and judges.5 He concludes that each year, Miranda results in tens of thousands of “lost cases” for violent crimes, along with tens of thousands more for property crimes. His numbers are based on an estimated loss of 3.8 percent of convictions in serious cases.
Replying to Cassell, Professor Stephen Schulhofer reached the opposite conclusion.6 After adjusting for what he describes as Cassell’s faulty data analysis and biased selection of samples, Schulhofer concludes, “For all practical purposes, Miranda’s empirically detectable harm to law enforcement shrinks virtually to zero.” Schulhofer then offers a robust defense of Miranda’s benefits, noting that “[t]o carry the day, an alternative to Miranda not only must promise more convictions, but also must preserve justice and respect for constitutional values in the 99% (or perhaps only 96.2%) of convictions that will be obtained successfully under either regime—and in all the arrests that will not produce convictions under either regime.”7
Noting that—according to his own analysis—police have managed to obtain confessions under Miranda at rates similar to those of the old days, Schulhofer confronts the question of why then we should care about Miranda. That is, if it doesn’t reduce confessions, why bother? He replies that the Court’s goal in Miranda was not “to reduce or eliminate confessions,” recalling that the Court explicitly established a procedure “to ensure that confessions could continue to be elicited and used.”8Miranda’s stated objective was not to eliminate confessions, but to eliminate compelling pressure in the interrogation process.”9 In other words, under Miranda, police still get confessions, but they get them by tricking suspects (and exploiting their overconfidence) instead of by “pressure and fear.” That difference, to Schulhofer, honors the Self-Incrimination Clause of the Fifth Amendment while imposing “detectable social costs [that] are vanishingly small.”10
A decade later, Professors George C. Thomas III and Richard A. Leo reviewed “two generations of scholarship” and concluded that Miranda has “exerted a negligible effect” on the ability of police to obtain confessions.11 They argued, as well, that Miranda’s “practical benefits—as a procedural safeguard against compulsion, coercion, false confessions, or any of the pernicious interrogation techniques that the Warren Court excoriated in the Miranda decision”—are similarly negligible.12 They offered several potentially overlapping explanations for their findings of negligible effects. First, suspects know of their rights from television and elsewhere, yet overwhelming majorities “waive their rights and thus appear to consent to interrogation.”13 (They analogized Miranda warnings to those on cigarette packages.) Second, police have learned to recite the Miranda warnings in a way that encourages cooperation. Third, Supreme Court decisions have limited the effects of the Miranda Rule (for example, by making it easy for prosecutors to demonstrate “waiver”). Indeed, police and prosecutors now largely support Miranda and report that it does not interfere with their work.
The broad consensus is that Miranda is not a serious impediment to policework, meaning that suspects regularly confess to serious crimes despite being explicitly informed (1) that they need not do so and (2) that doing so could cause them harm in court. Students interested in how police obtain confessions should see an article titled Ordinary Police Interrogation in the United States: The Destruction of Meaning and Persons: A Psychoanalytic-Ethical Investigation.14 The authors describe a suspect who falsely confessed to murdering his sister. The interrogation was videotaped, allowing analysis of how an innocent person (conclusive evidence of his innocence was later discovered) was pressured to confess by lawful police tactics. The authors argue, “The goal of interrogation is not to gather information. It is to obtain confessions.”15 That is, once police decide during an investigation who they believe committed the crime, the purpose of interrogation is to get the admissions needed to convict the suspect.
One author attended a training seminar for police interrogators, learning techniques such as how to “evade informing suspects of their rights during interrogation by giving suspects the impression that they have been arrested without in fact placing them under arrest.” He reports, “Reid seminar attendees are told to walk into interviews with thick folders, videocassettes, or similar props spilling out to make subjects believe interrogators have evidence against them.” After describing several other techniques effective against the innocent and guilty alike, the authors state, “The interrogator, armed and trained with these powerful rhetorical tools developed and refined over seventy years of systematic study and placed in the position of power and authority over the suspect, not surprisingly often extracts admissions of criminal conduct. But such admissions do not end the interrogation.”16 Because police prefer confessions that match other evidence, interrogators follow the initial admissions with leading questions designed to conform the suspect’s story to what is already known about a crime.
A discussion of best practices for interrogations is beyond the scope of this chapter. It will suffice to state that if questioners seek to learn the truth during questioning—as opposed to confirming existing beliefs and obtaining evidence for trial—the process described in Ordinary Police Interrogation would be avoided.17
Regardless of one’s views on the ultimate practical effects of Miranda, one cannot deny that Supreme Court doctrine affects the number of confessions admitted as evidence against defendants. In our next chapter, we review how the Court has defined “interrogation” under Miranda. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/03%3A_Interrogations/3.03%3A_Chapter_24_-_The_Miranda_Rule-_What_Is_Custody.txt |
INTERROGATIONS
The Miranda Rule: What Is Interrogation?
Having considered how the Court defines “custody” in Miranda Rule cases, we now examine how the Court defines “interrogation.” Only during “custodial interrogation” does the Miranda Rule apply.
In addition, in this chapter we begin our review of the Court’s cases concerning waiver of rights under Miranda.
Supreme Court of the United States
Rhode Island v. Thomas J. Innis
Decided May 12, 1980 – 446 U.S. 291
Mr. Justice STEWART delivered the opinion of the Court.
In Miranda v. Arizona, the Court held that, once a defendant in custody asks to speak with a lawyer, all interrogation must cease until a lawyer is present. The issue in this case is whether the respondent was “interrogated” in violation of the standards promulgated in the Miranda opinion.
I
On the night of January 12, 1975, John Mulvaney, a Providence, R.I., taxicab driver, disappeared after being dispatched to pick up a customer. His body was discovered four days later buried in a shallow grave in Coventry, R.I. He had died from a shotgun blast aimed at the back of his head.
On January 17, 1975, shortly after midnight, the Providence police received a telephone call from Gerald Aubin, also a taxicab driver, who reported that he had just been robbed by a man wielding a sawed-off shotgun. Aubin further reported that he had dropped off his assailant near Rhode Island College in a section of Providence known as Mount Pleasant. While at the Providence police station waiting to give a statement, Aubin noticed a picture of his assailant on a bulletin board. Aubin so informed one of the police officers present. The officer prepared a photo array, and again Aubin identified a picture of the same person. That person was the respondent. Shortly thereafter, the Providence police began a search of the Mount Pleasant area.
At approximately 4:30 a.m. on the same date, Patrolman Lovell, while cruising the streets of Mount Pleasant in a patrol car, spotted the respondent standing in the street facing him. When Patrolman Lovell stopped his car, the respondent walked towards it. Patrolman Lovell then arrested the respondent, who was unarmed, and advised him of his so-called Miranda rights. While the two men waited in the patrol car for other police officers to arrive, Patrolman Lovell did not converse with the respondent other than to respond to the latter’s request for a cigarette.
Within minutes, Sergeant Sears arrived at the scene of the arrest, and he also gave the respondent the Miranda warnings. Immediately thereafter, Captain Leyden and other police officers arrived. Captain Leyden advised the respondent of his Miranda rights. The respondent stated that he understood those rights and wanted to speak with a lawyer. Captain Leyden then directed that the respondent be placed in a “caged wagon,” a four-door police car with a wire screen mesh between the front and rear seats, and be driven to the central police station. Three officers, Patrolmen Gleckman, Williams, and McKenna, were assigned to accompany the respondent to the central station. They placed the respondent in the vehicle and shut the doors. Captain Leyden then instructed the officers not to question the respondent or intimidate or coerce him in any way. The three officers then entered the vehicle, and it departed.
While en route to the central station, Patrolman Gleckman initiated a conversation with Patrolman McKenna concerning the missing shotgun. As Patrolman Gleckman later testified:
“A. At this point, I was talking back and forth with Patrolman McKenna stating that I frequent this area while on patrol and [that because a school for handicapped children is located nearby,] there’s a lot of handicapped children running around in this area, and God forbid one of them might find a weapon with shells and they might hurt themselves.”
Patrolman McKenna apparently shared his fellow officer’s concern:
“A. I more or less concurred with him [Gleckman] that it was a safety factor and that we should, you know, continue to search for the weapon and try to find it.”
While Patrolman Williams said nothing, he overheard the conversation between the two officers:
“A. He [Gleckman] said it would be too bad if the little—I believe he said a girl—would pick up the gun, maybe kill herself.”
The respondent then interrupted the conversation, stating that the officers should turn the car around so he could show them where the gun was located. At this point, Patrolman McKenna radioed back to Captain Leyden that they were returning to the scene of the arrest and that the respondent would inform them of the location of the gun. At the time the respondent indicated that the officers should turn back, they had traveled no more than a mile, a trip encompassing only a few minutes.
The police vehicle then returned to the scene of the arrest where a search for the shotgun was in progress. There, Captain Leyden again advised the respondent of his Miranda rights. The respondent replied that he understood those rights but that he “wanted to get the gun out of the way because of the kids in the area in the school.” The respondent then led the police to a nearby field, where he pointed out the shotgun under some rocks by the side of the road.
On March 20, 1975, a grand jury returned an indictment charging the respondent with the kidnaping, robbery, and murder of John Mulvaney. Before trial, the respondent moved to suppress the shotgun and the statements he had made to the police regarding it. After an evidentiary hearing at which the respondent elected not to testify, the trial judge found that the respondent had been “repeatedly and completely advised of his Miranda rights.” He further found that it was “entirely understandable that [the officers in the police vehicle] would voice their concern [for the safety of the handicapped children] to each other.” The judge then concluded that the respondent’s decision to inform the police of the location of the shotgun was “a waiver, clearly, and on the basis of the evidence that I have heard, and [sic] intelligent waiver, of his [Miranda] right to remain silent.” Thus, without passing on whether the police officers had in fact “interrogated” the respondent, the trial court sustained the admissibility of the shotgun and testimony related to its discovery. That evidence was later introduced at the respondent’s trial, and the jury returned a verdict of guilty on all counts.
On appeal, the Rhode Island Supreme Court, in a 3–2 decision, set aside the respondent’s conviction. [T]he court concluded that the respondent had invoked his Miranda right to counsel and that, contrary to Miranda’s mandate that, in the absence of counsel, all custodial interrogation then cease, the police officers in the vehicle had “interrogated” the respondent without a valid waiver of his right to counsel. It was the view of the state appellate court that, even though the police officers may have been genuinely concerned about the public safety and even though the respondent had not been addressed personally by the police officers, the respondent nonetheless had been subjected to “subtle coercion” that was the equivalent of “interrogation” within the meaning of the Miranda opinion. Moreover, contrary to the holding of the trial court, the appellate court concluded that the evidence was insufficient to support a finding of waiver. Having concluded that both the shotgun and testimony relating to its discovery were obtained in violation of the Miranda standards and therefore should not have been admitted into evidence, the Rhode Island Supreme Court held that the respondent was entitled to a new trial.
We granted certiorari to address for the first time the meaning of “interrogation” under Miranda v. Arizona.
II
The Court in the Miranda opinion [] outlined in some detail the consequences that would result if a defendant sought to invoke those procedural safeguards. With regard to the right to the presence of counsel, the Court noted:
“Once warnings have been given, the subsequent procedure is clear. … If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.”
In the present case, the parties are in agreement that the respondent was fully informed of his Miranda rights and that he invoked his Miranda right to counsel when he told Captain Leyden that he wished to consult with a lawyer. It is also uncontested that the respondent was “in custody” while being transported to the police station.
The issue, therefore, is whether the respondent was “interrogated” by the police officers in violation of the respondent’s undisputed right under Miranda to remain silent until he had consulted with a lawyer. In resolving this issue, we first define the term “interrogation” under Miranda before turning to a consideration of the facts of this case.
A
The starting point for defining “interrogation” in this context is, of course, the Court’s Miranda opinion. There the Court observed that “[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” This passage and other references throughout the opinion to “questioning” might suggest that the Miranda rules were to apply only to those police interrogation practices that involve express questioning of a defendant while in custody.
We do not, however, construe the Miranda opinion so narrowly. The concern of the Court in Miranda was that the “interrogation environment” created by the interplay of interrogation and custody would “subjugate the individual to the will of his examiner” and thereby undermine the privilege against compulsory self-incrimination. The police practices that evoked this concern included several that did not involve express questioning. For example, one of the practices discussed in Miranda was the use of line-ups in which a coached witness would pick the defendant as the perpetrator. This was designed to establish that the defendant was in fact guilty as a predicate for further interrogation. A variation on this theme discussed in Miranda was the so-called “reverse line-up” in which a defendant would be identified by coached witnesses as the perpetrator of a fictitious crime, with the object of inducing him to confess to the actual crime of which he was suspected in order to escape the false prosecution. The Court in Miranda also included in its survey of interrogation practices the use of psychological ploys, such as to “posi[t]” “the guilt of the subject,” to “minimize the moral seriousness of the offense,” and “to cast blame on the victim or on society.” It is clear that these techniques of persuasion, no less than express questioning, were thought, in a custodial setting, to amount to interrogation.
This is not to say, however, that all statements obtained by the police after a person has been taken into custody are to be considered the product of interrogation. It is clear [] that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. “Interrogation,” as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.
We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.1 But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.
B
Turning to the facts of the present case, we conclude that the respondent was not “interrogated” within the meaning of Miranda. It is undisputed that the first prong of the definition of “interrogation” was not satisfied, for the conversation between Patrolmen Gleckman and McKenna included no express questioning of the respondent. Rather, that conversation was, at least in form, nothing more than a dialogue between the two officers to which no response from the respondent was invited.
Moreover, it cannot be fairly concluded that the respondent was subjected to the “functional equivalent” of questioning. It cannot be said, in short, that Patrolmen Gleckman and McKenna should have known that their conversation was reasonably likely to elicit an incriminating response from the respondent. There is nothing in the record to suggest that the officers were aware that the respondent was peculiarly susceptible to an appeal to his conscience concerning the safety of handicapped children. Nor is there anything in the record to suggest that the police knew that the respondent was unusually disoriented or upset at the time of his arrest.
The case thus boils down to whether, in the context of a brief conversation, the officers should have known that the respondent would suddenly be moved to make a self-incriminating response. Given the fact that the entire conversation appears to have consisted of no more than a few off hand remarks, we cannot say that the officers should have known that it was reasonably likely that Innis would so respond. This is not a case where the police carried on a lengthy harangue in the presence of the suspect. Nor does the record support the respondent’s contention that, under the circumstances, the officers’ comments were particularly “evocative.” It is our view, therefore, that the respondent was not subjected by the police to words or actions that the police should have known were reasonably likely to elicit an incriminating response from him.
The Rhode Island Supreme Court erred, in short, in equating “subtle compulsion” with interrogation. That the officers’ comments struck a responsive chord is readily apparent. Thus, it may be said, as the Rhode Island Supreme Court did say, that the respondent was subjected to “subtle compulsion.” But that is not the end of the inquiry. It must also be established that a suspect’s incriminating response was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response. This was not established in the present case.
For the reasons stated, the judgment of the Supreme Court of Rhode Island is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
I am substantially in agreement with the Court’s definition of “interrogation” within the meaning of Miranda v. Arizona.
I am utterly at a loss, however, to understand how this objective standard as applied to the facts before us can rationally lead to the conclusion that there was no interrogation. Innis was arrested at 4:30 a.m., handcuffed, searched, advised of his rights, and placed in the back seat of a patrol car. Within a short time he had been twice more advised of his rights and driven away in a four-door sedan with three police officers. Two officers sat in the front seat and one sat beside Innis in the back seat. Since the car traveled no more than a mile before Innis agreed to point out the location of the murder weapon, Officer Gleckman must have begun almost immediately to talk about the search for the shotgun.
The Court attempts to characterize Gleckman’s statements as “no more than a few off hand remarks” which could not reasonably have been expected to elicit a response. If the statements had been addressed to respondent, it would be impossible to draw such a conclusion. The simple message of the “talking back and forth” between Gleckman and McKenna was that they had to find the shotgun to avert a child’s death.
One can scarcely imagine a stronger appeal to the conscience of a suspect—any suspect—than the assertion that if the weapon is not found an innocent person will be hurt or killed. And not just any innocent person, but an innocent child—a little girl—a helpless, handicapped little girl on her way to school. The notion that such an appeal could not be expected to have any effect unless the suspect were known to have some special interest in handicapped children verges on the ludicrous. As a matter of fact, the appeal to a suspect to confess for the sake of others, to “display some evidence of decency and honor,” is a classic interrogation technique.
Gleckman’s remarks would obviously have constituted interrogation if they had been explicitly directed to respondent, and the result should not be different because they were nominally addressed to McKenna. This is not a case where police officers speaking among themselves are accidentally overheard by a suspect. These officers were “talking back and forth” in close quarters with the handcuffed suspect, traveling past the very place where they believed the weapon was located. They knew respondent would hear and attend to their conversation, and they are chargeable with knowledge of and responsibility for the pressures to speak which they created.
I firmly believe that this case is simply an aberration, and that in future cases the Court will apply the standard adopted today in accordance with its plain meaning.
Mr. Justice STEVENS, dissenting.
An original definition of an old term coupled with an original finding of fact on a cold record makes it possible for this Court to vacate the judgment of the Supreme Court of Rhode Island. That court, on the basis of the facts in the record before it, concluded that members of the Providence, R.I., police force had interrogated respondent, who was clearly in custody at the time, in the absence of counsel after he had requested counsel. In my opinion the state court’s conclusion that there was interrogation rests on a proper interpretation of both the facts and the law; thus, its determination that the products of the interrogation were inadmissible at trial should be affirmed.
In short, in order to give full protection to a suspect’s right to be free from any interrogation at all, the definition of “interrogation” must include any police statement or conduct that has the same purpose or effect as a direct question. Statements that appear to call for a response from the suspect, as well as those that are designed to do so, should be considered interrogation. By prohibiting only those relatively few statements or actions that a police officer should know are likely to elicit an incriminating response, the Court today accords a suspect considerably less protection. Indeed, since I suppose most suspects are unlikely to incriminate themselves even when questioned directly, this new definition will almost certainly exclude every statement that is not punctuated with a question mark from the concept of “interrogation.”
The difference between the approach required by a faithful adherence to Miranda and the stinted test applied by the Court today can be illustrated by comparing three different ways in which Officer Gleckman could have communicated his fears about the possible dangers posed by the shotgun to handicapped children. He could have:
(1) directly asked Innis:
Will you please tell me where the shotgun is so we can protect handicapped school children from danger?
(2) announced to the other officers in the wagon:
If the man sitting in the back seat with me should decide to tell us where the gun is, we can protect handicapped children from danger.
or (3) stated to the other officers:
It would be too bad if a little handicapped girl would pick up the gun that this man left in the area and maybe kill herself.
In my opinion, all three of these statements should be considered interrogation because all three appear to be designed to elicit a response from anyone who in fact knew where the gun was located. Under the Court’s test, on the other hand, the form of the statements would be critical. The third statement would not be interrogation because in the Court’s view there was no reason for Officer Gleckman to believe that Innis was susceptible to this type of an implied appeal; therefore, the statement would not be reasonably likely to elicit an incriminating response. Assuming that this is true, then it seems to me that the first two statements, which would be just as unlikely to elicit such a response, should also not be considered interrogation. But, because the first statement is clearly an express question, it would be considered interrogation under the Court’s test. The second statement, although just as clearly a deliberate appeal to Innis to reveal the location of the gun, would presumably not be interrogation because (a) it was not in form a direct question and (b) it does not fit within the “reasonably likely to elicit an incriminating response” category that applies to indirect interrogation.
As this example illustrates, the Court’s test creates an incentive for police to ignore a suspect’s invocation of his rights in order to make continued attempts to extract information from him. If a suspect does not appear to be susceptible to a particular type of psychological pressure, the police are apparently free to exert that pressure on him despite his request for counsel, so long as they are careful not to punctuate their statements with question marks. And if, contrary to all reasonable expectations, the suspect makes an incriminating statement, that statement can be used against him at trial. The Court thus turns Miranda’s unequivocal rule against any interrogation at all into a trap in which unwary suspects may be caught by police deception.
Notes, Comments, and Questions
Review the three questions presented by Justice Stevens. Can you articulate a rule under which they are not all interrogations? Look closely at how the majority applies the “functional equivalent” part of its interrogation rule. Will the application be easily transferred to other scenarios?
Consider a suspect who invokes his right to counsel after receiving his Miranda warnings. When the suspect’s wife arrives, a police officer stays in the room as the suspect and wife converse. The officer secretly records the conversation. Is the creation of the recording (or, in slightly different facts, having the officer listen carefully to the conversation without recording it) the “functional equivalent” of interrogation? See Arizona v. Mauro, 481 U.S. 520 (1987).
Imagine that police arrest a suspect. They do not ask any questions. Instead, an officer tells the suspect “that any cooperation would be brought to the attention of the Assistant United States Attorney.” Is that “interrogation” under Innis? See United States v. Montana, 958 F.2d 516, 518 (2d Cir. 1992).
The next case concerns whether an undercover agent—that is, someone working for police without a suspect’s knowledge—must deliver Miranda warnings before questioning a suspect who is in custody.
Supreme Court of the United States
Illinois v. Lloyd Perkins
Decided June 4, 1990 – 496 U.S. 292
Justice KENNEDY delivered the opinion of the Court.
An undercover government agent was placed in the cell of respondent Perkins, who was incarcerated on charges unrelated to the subject of the agent’s investigation. Respondent made statements that implicated him in the crime that the agent sought to solve. Respondent claims that the statements should be inadmissible because he had not been given Miranda warnings by the agent. We hold that the statements are admissible. Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement.
I
In November 1984, Richard Stephenson was murdered in a suburb of East St. Louis, Illinois. The murder remained unsolved until March 1986, when one Donald Charlton told police that he had learned about a homicide from a fellow inmate at the Graham Correctional Facility, where Charlton had been serving a sentence for burglary. The fellow inmate was Lloyd Perkins, who is the respondent here. Charlton told police that, while at Graham, he had befriended respondent, who told him in detail about a murder that respondent had committed in East St. Louis. On hearing Charlton’s account, the police recognized details of the Stephenson murder that were not well known, and so they treated Charlton’s story as a credible one.
By the time the police heard Charlton’s account, respondent had been released from Graham, but police traced him to a jail in Montgomery County, Illinois, where he was being held pending trial on a charge of aggravated battery, unrelated to the Stephenson murder. The police wanted to investigate further respondent’s connection to the Stephenson murder, but feared that the use of an eavesdropping device would prove impracticable and unsafe. They decided instead to place an undercover agent in the cellblock with respondent and Charlton. The plan was for Charlton and undercover agent John Parisi to pose as escapees from a work release program who had been arrested in the course of a burglary. Parisi and Charlton were instructed to engage respondent in casual conversation and report anything he said about the Stephenson murder.
Parisi, using the alias “Vito Bianco,” and Charlton, both clothed in jail garb, were placed in the cellblock with respondent at the Montgomery County jail. The cellblock consisted of 12 separate cells that opened onto a common room. Respondent greeted Charlton who, after a brief conversation with respondent, introduced Parisi by his alias. Parisi told respondent that he “wasn’t going to do any more time” and suggested that the three of them escape. Respondent replied that the Montgomery County jail was “rinky-dink” and that they could “break out.” The trio met in respondent’s cell later that evening, after the other inmates were asleep, to refine their plan. Respondent said that his girlfriend could smuggle in a pistol. Charlton said: “Hey, I’m not a murderer, I’m a burglar. That’s your guys’ profession.” After telling Charlton that he would be responsible for any murder that occurred, Parisi asked respondent if he had ever “done” anybody. Respondent said that he had and proceeded to describe at length the events of the Stephenson murder. Parisi and respondent then engaged in some casual conversation before respondent went to sleep. Parisi did not give respondent Miranda warnings before the conversations.
Respondent was charged with the Stephenson murder. Before trial, he moved to suppress the statements made to Parisi in the jail. The trial court granted the motion to suppress, and the State appealed. The Appellate Court of Illinois affirmed, holding that Miranda v. Arizona prohibits all undercover contacts with incarcerated suspects that are reasonably likely to elicit an incriminating response.
We granted certiorari to decide whether an undercover law enforcement officer must give Miranda warnings to an incarcerated suspect before asking him questions that may elicit an incriminating response. We now reverse.
II
Conversations between suspects and undercover agents do not implicate the concerns underlying Miranda. The essential ingredients of a “police-dominated atmosphere” and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate. Coercion is determined from the perspective of the suspect. When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking. There is no empirical basis for the assumption that a suspect speaking to those whom he assumes are not officers will feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess.
It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation. We reject the argument that Miranda warnings are required whenever a suspect is in custody in a technical sense and converses with someone who happens to be a government agent. Questioning by captors, who appear to control the suspect’s fate, may create mutually reinforcing pressures that the Court has assumed will weaken the suspect’s will, but where a suspect does not know that he is conversing with a government agent, these pressures do not exist. The state court here mistakenly assumed that because the suspect was in custody, no undercover questioning could take place. When the suspect has no reason to think that the listeners have official power over him, it should not be assumed that his words are motivated by the reaction he expects from his listeners. “[W]hen the agent carries neither badge nor gun and wears not ‘police blue,’ but the same prison gray” as the suspect, there is no “interplay between police interrogation and police custody.”
Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect’s misplaced trust in one he supposes to be a fellow prisoner. As we recognized in Miranda: “[C]onfessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.” Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concerns.
Miranda was not meant to protect suspects from boasting about their criminal activities in front of persons whom they believe to be their cellmates. This case is illustrative. Respondent had no reason to feel that undercover agent Parisi had any legal authority to force him to answer questions or that Parisi could affect respondent’s future treatment. Respondent viewed the cellmate-agent as an equal and showed no hint of being intimidated by the atmosphere of the jail. In recounting the details of the Stephenson murder, respondent was motivated solely by the desire to impress his fellow inmates. He spoke at his own peril.
The tactic employed here to elicit a voluntary confession from a suspect does not violate the Self-Incrimination Clause. This Court’s Sixth Amendment decisions [] also do not avail respondent. We held in those cases that the government may not use an undercover agent to circumvent the Sixth Amendment right to counsel once a suspect has been charged with the crime. After charges have been filed, the Sixth Amendment prevents the government from interfering with the accused’s right to counsel. In the instant case no charges had been filed on the subject of the interrogation, and our Sixth Amendment precedents are not applicable.
Respondent can seek no help from his argument that a bright-line rule for the application of Miranda is desirable. Law enforcement officers will have little difficulty putting into practice our holding that undercover agents need not give Miranda warnings to incarcerated suspects. The use of undercover agents is a recognized law enforcement technique, often employed in the prison context to detect violence against correctional officials or inmates, as well as for the purposes served here. The interests protected by Miranda are not implicated in these cases, and the warnings are not required to safeguard the constitutional rights of inmates who make voluntary statements to undercover agents.
We hold that an undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response. The statements at issue in this case were voluntary, and there is no federal obstacle to their admissibility at trial. We now reverse and remand for proceedings not inconsistent with our opinion.
Justice MARSHALL, dissenting.
This Court clearly and simply stated its holding in Miranda v. Arizona: “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” The Court reaches the contrary conclusion by fashioning an exception to the Miranda rule that applies whenever “an undercover law enforcement officer posing as a fellow inmate … ask[s] questions that may elicit an incriminating response” from an incarcerated suspect. This exception is inconsistent with the rationale supporting Miranda and allows police officers intentionally to take advantage of suspects unaware of their constitutional rights. I therefore dissent.
The Court does not dispute that the police officer here conducted a custodial interrogation of a criminal suspect. Perkins was incarcerated in county jail during the questioning at issue here; under these circumstances, he was in custody as that term is defined in Miranda. While Perkins was confined, an undercover police officer, with the help of a police informant, questioned him about a serious crime. Although the Court does not dispute that Perkins was interrogated, it downplays the nature of the 35-minute questioning by disingenuously referring to it as a “conversatio[n].” The officer’s narration of the “conversation” at Perkins’ suppression hearing however, reveals that it clearly was an interrogation.
“[Agent:] You ever do anyone?
“[Perkins:] Yeah, once in East St. Louis, in a rich white neighborhood.
“Informant: I didn’t know they had any rich white neighborhoods in East St. Louis.
“Perkins: It wasn’t in East St. Louis, it was by a race track in Fairview Heights….
“[Agent]: You did a guy in Fairview Heights?
“Perkins: Yeah in a rich white section where most of the houses look the same.
“[Informant]: If all the houses look the same, how did you know you had the right house?
“Perkins: Me and two guys cased the house for about a week. I knew exactly which house, the second house on the left from the corner.
“[Agent]: How long ago did this happen?
“Perkins: Approximately about two years ago. I got paid \$5,000 for that job.
“[Agent]: How did it go down?
“Perkins: I walked up [to] this guy[’s] house with a sawed-off under my trench coat.
“[Agent]: What type gun[?]
“Perkins: A .12 gauge Remmington [sic] Automatic Model 1100 sawed-off.”
The police officer continued the inquiry, asking a series of questions designed to elicit specific information about the victim, the crime scene, the weapon, Perkins’ motive, and his actions during and after the shooting. This interaction was not a “conversation”; Perkins, the officer, and the informant were not equal participants in a free-ranging discussion, with each man offering his views on different topics. Rather, it was an interrogation: Perkins was subjected to express questioning likely to evoke an incriminating response.
Because Perkins was interrogated by police while he was in custody, Miranda required that the officer inform him of his rights. In rejecting that conclusion, the Court finds that “conversations” between undercover agents and suspects are devoid of the coercion inherent in station house interrogations conducted by law enforcement officials who openly represent the State. Miranda was not, however, concerned solely with police coercion. It dealt with any police tactics that may operate to compel a suspect in custody to make incriminating statements without full awareness of his constitutional rights. Thus, when a law enforcement agent structures a custodial interrogation so that a suspect feels compelled to reveal incriminating information, he must inform the suspect of his constitutional rights and give him an opportunity to decide whether or not to talk.
The Court’s holding today complicates a previously clear and straightforward doctrine. The Court opines that “[l]aw enforcement officers will have little difficulty putting into practice our holding that undercover agents need not give Miranda warnings to incarcerated suspects.” Perhaps this prediction is true with respect to fact patterns virtually identical to the one before the Court today. But the outer boundaries of the exception created by the Court are by no means clear. Would Miranda be violated, for instance, if an undercover police officer beat a confession out of a suspect, but the suspect thought the officer was another prisoner who wanted the information for his own purposes?
The Court’s adoption of the “undercover agent” exception to the Miranda rule [] is necessarily also the adoption of a substantial loophole in our jurisprudence protecting suspects’ Fifth Amendment rights.
I dissent.
Notes, Comments, and Questions
The rule desired by the defendant in Perkins—which the Court rejected—would essentially have prohibited undercover questioning of suspects who are in custody. Only the most foolish suspect imaginable could be fooled by an “undercover” agent who recites the Miranda warnings to the suspect. Students should note, however, that in the context of the Sixth Amendment right to the assistance of counsel, the Court has proven willing to accept this consequence. (In other words, the Court’s Sixth Amendment decisions have created constitutional law that makes certain undercover questioning unlawful.) In Chapter 30, we will consider how the Court has regulated interrogations under the Sixth Amendment after concluding our examination of the Miranda Rule.
The Miranda Rule: Waiver of Rights
After setting forth the warnings police must deliver before conducting “custodial interrogation,” the Miranda Court wrote, “The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.” The Court did not, however, define “waiver.” In the next two cases, the Court begins to answer what counts as waiver, explaining how police officers can determine when interrogation is permissible after a suspect has been warned.
Supreme Court of the United States
North Carolina v. Willie Thomas Butler
Decided April 24, 1979 – 441 U.S. 369
Mr. Justice STEWART delivered the opinion of the Court.
In evident conflict with the present view of every other court that has considered the issue, the North Carolina Supreme Court has held that Miranda v. Arizona requires that no statement of a person under custodial interrogation may be admitted in evidence against him unless, at the time the statement was made, he explicitly waived the right to the presence of a lawyer. We granted certiorari to consider whether this per se rule reflects a proper understanding of the Miranda decision.
The respondent was convicted in a North Carolina trial court of kidnaping, armed robbery, and felonious assault. The evidence at his trial showed that he and a man named Elmer Lee had robbed a gas station in Goldsboro, N.C., in December 1976, and had shot the station attendant as he was attempting to escape. The attendant was paralyzed, but survived to testify against the respondent.
The prosecution also produced evidence of incriminating statements made by the respondent shortly after his arrest by Federal Bureau of Investigation agents in the Bronx, N.Y., on the basis of a North Carolina fugitive warrant. Outside the presence of the jury, FBI Agent Martinez testified that at the time of the arrest he fully advised the respondent of the rights delineated in the Miranda case. According to the uncontroverted testimony of Martinez, the agents then took the respondent to the FBI office in nearby New Rochelle, N.Y. There, after the agents determined that the respondent had an 11th grade education and was literate, he was given the Bureau’s “Advice of Rights” form which he read. When asked if he understood his rights, he replied that he did. The respondent refused to sign the waiver at the bottom of the form. He was told that he need neither speak nor sign the form, but that the agents would like him to talk to them. The respondent replied: “I will talk to you but I am not signing any form.” He then made inculpatory statements. Agent Martinez testified that the respondent said nothing when advised of his right to the assistance of a lawyer. At no time did the respondent request counsel or attempt to terminate the agents’ questioning.
At the conclusion of this testimony the respondent moved to suppress the evidence of his incriminating statements on the ground that he had not waived his right to the assistance of counsel at the time the statements were made. The court denied the motion, finding that
“the statement made by the defendant, William Thomas Butler, to Agent David C. Martinez, was made freely and voluntarily to said agent after having been advised of his rights as required by the Miranda ruling, including his right to an attorney being present at the time of the inquiry and that the defendant, Butler, understood his rights; [and] that he effectively waived his rights, including the right to have an attorney present during the questioning by his indication that he was willing to answer questions, having read the rights form together with the Waiver of Rights ….”
The respondent’s statements were then admitted into evidence, and the jury ultimately found the respondent guilty of each offense charged.
On appeal, the North Carolina Supreme Court reversed the convictions and ordered a new trial. It found that the statements had been admitted in violation of the requirements of the Miranda decision, noting that the respondent had refused to waive in writing his right to have counsel present and that there had not been a specific oral waiver.
We conclude that the North Carolina Supreme Court erred in its reading of the Miranda opinion. [T]he Court held that an express statement can constitute a waiver, and that silence alone after such warnings cannot do so. But the Court did not hold that such an express statement is indispensable to a finding of waiver.
An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.
The Court’s opinion in Miranda explained the reasons for the prophylactic rules it created:
“We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.”
The per se rule that the North Carolina Supreme Court has found in Miranda does not speak to these concerns. There is no doubt that this respondent was adequately and effectively apprised of his rights. The only question is whether he waived the exercise of one of those rights, the right to the presence of a lawyer. Neither the state court nor the respondent has offered any reason why there must be a negative answer to that question in the absence of an express waiver. This is not the first criminal case to question whether a defendant waived his constitutional rights. It is an issue with which courts must repeatedly deal. Even when a right so fundamental as that to counsel at trial is involved, the question of waiver must be determined on “the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”
We see no reason to discard that standard and replace it with an inflexible per se rule in a case such as this. As stated at the outset of this opinion, it appears that every court that has considered this question has now reached the same conclusion. Ten of the eleven United States Courts of Appeals and the courts of at least 17 States have held that an explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to remain silent or the right to counsel guaranteed by the Miranda case. By creating an inflexible rule that no implicit waiver can ever suffice, the North Carolina Supreme Court has gone beyond the requirements of federal organic law. It follows that its judgment cannot stand, since a state court can neither add to nor subtract from the mandates of the United States Constitution.
Accordingly, the judgment is vacated, and the case is remanded to the North Carolina Supreme Court for further proceedings not inconsistent with this opinion.
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL and Mr. Justice STEVENS joins, dissenting.
The rule announced by the Court today allows a finding of waiver based upon “infer[ence] from the actions and words of the person interrogated.” The Court thus shrouds in half-light the question of waiver, allowing courts to construct inferences from ambiguous words and gestures. But the very premise of Miranda requires that ambiguity be interpreted against the interrogator. That premise is the recognition of the “compulsion inherent in custodial” interrogation and of its purpose “to subjugate the individual to the will of [his] examiner.” Under such conditions, only the most explicit waivers of rights can be considered knowingly and freely given.
The instant case presents a clear example of the need for an express waiver requirement. As the Court acknowledges, there is a disagreement over whether respondent was orally advised of his rights at the time he made his statement. The fact that Butler received a written copy of his rights is deemed by the Court to be sufficient basis to resolve the disagreement. But, unfortunately, there is also a dispute over whether Butler could read. And, obviously, if Butler did not have his rights read to him, and could not read them himself, there could be no basis upon which to conclude that he knowingly waived them. Indeed, even if Butler could read there is no reason to believe that his oral statements, which followed a refusal to sign a written waiver form, were intended to signify relinquishment of his rights.
Faced with “actions and words” of uncertain meaning, some judges may find waivers where none occurred. Others may fail to find them where they did. In the former case, the defendant’s rights will have been violated; in the latter, society’s interest in effective law enforcement will have been frustrated. A simple prophylactic rule requiring the police to obtain an express waiver of the right to counsel before proceeding with interrogation eliminates these difficulties. And since the Court agrees that Miranda requires the police to obtain some kind of waiver—whether express or implied—the requirement of an express waiver would impose no burden on the police not imposed by the Court’s interpretation. It would merely make that burden explicit. Had Agent Martinez simply elicited a clear answer from Willie Butler to the question, “Do you waive your right to a lawyer?” this journey through three courts would not have been necessary.
* * *
In the next case, the Court considered whether a “knowing” and “intelligent” waiver can be obtained only if a suspect knows all the crimes about which police might question him. In other words, is it enough that he be warned that anything he might say can be used to incriminate him, or must police also inform him of every crime he is suspected of having committed?
Supreme Court of the United States
Colorado v. John Leroy Spring
Decided Jan. 27, 1987 – 479 U.S. 564
Justice POWELL delivered the opinion of the Court.
This case presents the question whether the suspect’s awareness of all the crimes about which he may be questioned is relevant to determining the validity of his decision to waive the Fifth Amendment privilege.
I
In February 1979, respondent John Leroy Spring and a companion shot and killed Donald Walker during a hunting trip in Colorado. Shortly thereafter, an informant told agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) that Spring was engaged in the interstate transportation of stolen firearms. The informant also told the agents that Spring had discussed his participation in the Colorado killing. At the time the ATF agents received this information, Walker’s body had not been found and the police had received no report of his disappearance. Based on the information received from the informant relating to the firearms violations, the ATF agents set up an undercover operation to purchase firearms from Spring. On March 30, 1979, ATF agents arrested Spring in Kansas City, Missouri, during the undercover purchase.
An ATF agent on the scene of the arrest advised Spring of his Miranda rights. Spring was advised of his Miranda rights a second time after he was transported to the ATF office in Kansas City. At the ATF office, the agents also advised Spring that he had the right to stop the questioning at any time or to stop the questioning until the presence of an attorney could be secured. Spring then signed a written form stating that he understood and waived his rights, and that he was willing to make a statement and answer questions.
ATF agents first questioned Spring about the firearms transactions that led to his arrest. They then asked Spring if he had a criminal record. He admitted that he had a juvenile record for shooting his aunt when he was 10 years old. The agents asked if Spring had ever shot anyone else. Spring ducked his head and mumbled, “I shot another guy once.” The agents asked Spring if he had ever been to Colorado. Spring said no. The agents asked Spring whether he had shot a man named Walker in Colorado and thrown his body into a snowbank. Spring paused and then ducked his head again and said no. The interview ended at this point.
On May 26, 1979, Colorado law enforcement officials visited Spring while he was in jail in Kansas City pursuant to his arrest on the firearms offenses. The officers gave Spring the Miranda warnings, and Spring again signed a written form indicating that he understood his rights and was willing to waive them. The officers informed Spring that they wanted to question him about the Colorado homicide. Spring indicated that he “wanted to get it off his chest.” In an interview that lasted approximately 1 ½ hours, Spring confessed to the Colorado murder. During that time, Spring talked freely to the officers, did not indicate a desire to terminate the questioning, and never requested counsel. The officers prepared a written statement summarizing the interview. Spring read, edited, and signed the statement.
Spring was charged in Colorado state court with first-degree murder. Spring moved to suppress both statements on the ground that his waiver of Miranda rights was invalid. The trial court found that the ATF agents’ failure to inform Spring before the March 30 interview that they would question him about the Colorado murder did not affect his waiver of his Miranda rights.
Accordingly, the trial court concluded that the March 30 statement should not be suppressed on Fifth Amendment grounds. The trial court, however, subsequently ruled that Spring’s statement that he “shot another guy once” was irrelevant, and that the context of the discussion did not support the inference that the statement related to the Walker homicide. For that reason, the March 30 statement was not admitted at Spring’s trial. The court concluded that the May 26 statement “was made freely, voluntarily, and intelligently, after [Spring’s] being properly and fully advised of his rights, and that the statement should not be suppressed, but should be admitted in evidence.” The May 26 statement was admitted into evidence at trial, and Spring was convicted of first-degree murder.
Spring argued on appeal that his waiver of Miranda rights before the March 30 statement was invalid because he was not informed that he would be questioned about the Colorado murder. Although this statement was not introduced at trial, he claimed that its validity was relevant because the May 26 statement that was admitted against him was the illegal “fruit” of the March 30 statement and therefore should have been suppressed. The Colorado Court of Appeals agreed with Spring, holding that the ATF agents “had a duty to inform Spring that he was a suspect, or to readvise him of his Miranda rights, before questioning him about the murder.”
The Colorado Supreme Court affirmed the judgment of the Court of Appeals. The court concluded:
“Here, the absence of an advisement to Spring that he would be questioned about the Colorado homicide, and the lack of any basis to conclude that at the time of the execution of the waiver, he reasonably could have expected that the interrogation would extend to that subject, are determinative factors in undermining the validity of the waiver.”
We granted certiorari to resolve an arguable Circuit conflict and to review the Colorado Supreme Court’s determination that a suspect’s awareness of the possible subjects of questioning is a relevant and sometimes determinative consideration in assessing whether a waiver of the Fifth Amendment privilege is valid. We now reverse.
II
There is no dispute that the police obtained the May 26 confession after complete Miranda warnings and after informing Spring that he would be questioned about the Colorado homicide. The Colorado Supreme Court nevertheless held that the confession should have been suppressed because it was the illegal “fruit” of the March 30 statement. A confession cannot be “fruit of the poisonous tree” if the tree itself is not poisonous. Our inquiry, therefore, centers on the validity of the March 30 statement.
A
The Court’s fundamental aim in designing the Miranda warnings was “to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.”
Consistent with this purpose, a suspect may waive his Fifth Amendment privilege, “provided the waiver is made voluntarily, knowingly and intelligently.” In this case, the law enforcement officials twice informed Spring of his Fifth Amendment privilege in precisely the manner specified by Miranda. As we have noted, Spring indicated that he understood the enumerated rights and signed a written form expressing his intention to waive his Fifth Amendment privilege. The trial court specifically found that “there was no element of duress or coercion used to induce Spring’s statements [on March 30, 1978].” Despite the explicit warnings and the finding by the trial court, Spring argues that his March 30 statement was in effect compelled in violation of his Fifth Amendment privilege because he signed the waiver form without being aware that he would be questioned about the Colorado homicide. Spring’s argument strains the meaning of compulsion past the breaking point.
B
A statement is not “compelled” within the meaning of the Fifth Amendment if an individual “voluntarily, knowingly and intelligently” waives his constitutional privilege. The inquiry whether a waiver is coerced “has two distinct dimensions.”
“First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.”
There is no doubt that Spring’s decision to waive his Fifth Amendment privilege was voluntary. He alleges no “coercion of a confession by physical violence or other deliberate means calculated to break [his] will” and the trial court found none. His allegation that the police failed to supply him with certain information does not relate to any of the traditional indicia of coercion: “the duration and conditions of detention …, the manifest attitude of the police toward him, his physical and mental state, the diverse pressures which sap or sustain his powers of resistance and self-control.” Absent evidence that Spring’s “will [was] overborne and his capacity for self-determination critically impaired” because of coercive police conduct, his waiver of his Fifth Amendment privilege was voluntary under this Court’s decision in Miranda.
There also is no doubt that Spring’s waiver of his Fifth Amendment privilege was knowingly and intelligently made: that is, that Spring understood that he had the right to remain silent and that anything he said could be used as evidence against him. The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege. The Fifth Amendment’s guarantee is both simpler and more fundamental: A defendant may not be compelled to be a witness against himself in any respect. The Miranda warnings protect this privilege by ensuring that a suspect knows that he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time. The Miranda warnings ensure that a waiver of these rights is knowing and intelligent by requiring that the suspect be fully advised of this constitutional privilege, including the critical advice that whatever he chooses to say may be used as evidence against him.
In this case there is no allegation that Spring failed to understand the basic privilege guaranteed by the Fifth Amendment. Nor is there any allegation that he misunderstood the consequences of speaking freely to the law enforcement officials. In sum, we think that the trial court was indisputably correct in finding that Spring’s waiver was made knowingly and intelligently within the meaning of Miranda.
A
Spring relies on this Court’s statement in Miranda that “any evidence that the accused was threatened, tricked, or cajoled into a waiver will … show that the defendant did not voluntarily waive his privilege.” He contends that the failure to inform him of the potential subjects of interrogation constitutes the police trickery and deception condemned in Miranda, thus rendering his waiver of Miranda rights invalid. Spring, however, reads this statement in Miranda out of context and without due regard to the constitutional privilege the Miranda warnings were designed to protect.
We note first that the Colorado courts made no finding of official trickery. In fact, as noted above, the trial court expressly found that “there was no element of duress or coercion used to induce Spring’s statements.” Spring nevertheless insists that the failure of the ATF agents to inform him that he would be questioned about the murder constituted official “trickery” sufficient to invalidate his waiver of his Fifth Amendment privilege, even if the official conduct did not amount to “coercion.” Even assuming that Spring’s proposed distinction has merit, we reject his conclusion. This Court has never held that mere silence by law enforcement officials as to the subject matter of an interrogation is “trickery” sufficient to invalidate a suspect’s waiver of Miranda rights, and we expressly decline so to hold today.
Once Miranda warnings are given, it is difficult to see how official silence could cause a suspect to misunderstand the nature of his constitutional right—“his right to refuse to answer any question which might incriminate him.” “Indeed, it seems self-evident that one who is told he is free to refuse to answer questions is in a curious posture to later complain that his answers were compelled.” We have held that a valid waiver does not require that an individual be informed of all information “useful” in making his decision or all information that “might … affec[t] his decision to confess.” “[W]e have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights.” Here, the additional information could affect only the wisdom of a Miranda waiver, not its essentially voluntary and knowing nature. Accordingly, the failure of the law enforcement officials to inform Spring of the subject matter of the interrogation could not affect Spring’s decision to waive his Fifth Amendment privilege in a constitutionally significant manner.
B
This Court’s holding in Miranda specifically required that the police inform a criminal suspect that he has the right to remain silent and that anything he says may be used against him. There is no qualification of this broad and explicit warning. The warning, as formulated in Miranda, conveys to a suspect the nature of his constitutional privilege and the consequences of abandoning it. Accordingly, we hold that a suspect’s awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege.
IV
The judgment of the Colorado Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
[T]he Court[] hold[s] today: “[A] suspect’s awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining” the validity of his waiver. This careful phraseology avoids the important question whether the lack of any indication of the identified subjects for questioning is relevant to determining the validity of the suspect’s waiver.
I would include among the relevant factors for consideration whether before waiving his Fifth Amendment rights the suspect was aware, either through the circumstances surrounding his arrest or through a specific advisement from the arresting or interrogating officers, of the crime or crimes he was suspected of committing and about which they intended to ask questions. To hold that such knowledge is relevant would not undermine the “‘virtue of informing police and prosecutors with specificity’ as to how a pretrial questioning of a suspect must be conducted,” nor would it interfere with the use of legitimate interrogation techniques. Indeed, requiring the officers to articulate at a minimum the crime or crimes for which the suspect has been arrested could contribute significantly toward ensuring that the arrest was in fact lawful and the suspect’s statement not compelled because of an error at this stage alone.
The interrogation tactics utilized in this case demonstrate the relevance of the information Spring did not receive. The agents evidently hoped to obtain from Spring a valid confession to the federal firearms charge for which he was arrested and then parlay this admission into an additional confession of first-degree murder. Spring could not have expected questions about the latter, separate offense when he agreed to waive his rights, as it occurred in a different State and was a violation of state law outside the normal investigative focus of federal Alcohol, Tobacco, and Firearms agents.
The coercive aspects of the psychological ploy intended in this case, when combined with an element of surprise which may far too easily rise to a level of deception, cannot be justified in light of Miranda’s strict requirements that the suspect’s waiver and confession be voluntary, knowing, and intelligent. If a suspect has signed a waiver form with the intention of making a statement regarding a specifically alleged crime, the Court today would hold this waiver valid with respect to questioning about any other crime, regardless of its relation to the charges the suspect believes he will be asked to address. Yet once this waiver is given and the intended statement made, the protections afforded by Miranda against the “inherently compelling pressures” of the custodial interrogation have effectively dissipated. Additional questioning about entirely separate and more serious suspicions of criminal activity can take unfair advantage of the suspect’s psychological state, as the unexpected questions cause the compulsive pressures suddenly to reappear. Given this technique of interrogation, a suspect’s understanding of the topics planned for questioning is, therefore, at the very least “relevant” to assessing whether his decision to talk to the officers was voluntarily, knowingly, and intelligently made.
I dissent.
* * *
In our next chapter, we will continue our examination of waiver of Miranda rights. Students should beware that the requirements set forth in North Carolina v. Butler have been watered down in subsequent cases. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/03%3A_Interrogations/3.04%3A_Chapter_25_-_The_Miranda_Rule-_What_Is_Interrogation.txt |
INTERROGATIONS
The Miranda Rule: Waiver
In North Carolina v. Butler (Chapter 25), the Court stated that a “defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver,” can sometimes be sufficient to count as waiver of Miranda rights, even absent an express waiver.
In this chapter, we see that the Court has defined “a course of conduct indicating waiver” expansively, effectively holding that “defendant’s silence, coupled with an understanding of his rights” and an uncoerced statement to police constitutes waiver. In other words, an “uncoerced statement” will suffice as the “course of conduct indicating waiver” required by Butler.
In the next case, the Court considered whether police must inform a suspect that his attorney has been trying to reach him. More specifically, the issue was whether failure to do so invalidates an otherwise adequate waiver of Miranda rights.
Supreme Court of the United States
John Moran v. Brian K. Burbine
Decided March 10, 1986 – 475 U.S. 412
Justice O’CONNOR delivered the opinion of the Court.
After being informed of his rights pursuant to Miranda v. Arizona, and after executing a series of written waivers, respondent confessed to the murder of a young woman. At no point during the course of the interrogation, which occurred prior to arraignment, did he request an attorney. While he was in police custody, his sister attempted to retain a lawyer to represent him. The attorney telephoned the police station and received assurances that respondent would not be questioned further until the next day. In fact, the interrogation session that yielded the inculpatory statements began later that evening. The question presented is whether either the conduct of the police or respondent’s ignorance of the attorney’s efforts to reach him taints the validity of the waivers and therefore requires exclusion of the confessions.
I
On the morning of March 3, 1977, Mary Jo Hickey was found unconscious in a factory parking lot in Providence, Rhode Island. Suffering from injuries to her skull apparently inflicted by a metal pipe found at the scene, she was rushed to a nearby hospital. Three weeks later she died from her wounds.
Several months after her death, the Cranston, Rhode Island, police arrested respondent and two others in connection with a local burglary. Shortly before the arrest, Detective Ferranti of the Cranston police force had learned from a confidential informant that the man responsible for Ms. Hickey’s death lived at a certain address and went by the name of “Butch.” Upon discovering that respondent lived at that address and was known by that name, Detective Ferranti informed respondent of his Miranda rights. When respondent refused to execute a written waiver, Detective Ferranti spoke separately with the two other suspects arrested on the breaking and entering charge and obtained statements further implicating respondent in Ms. Hickey’s murder. At approximately 6 p.m., Detective Ferranti telephoned the police in Providence to convey the information he had uncovered. An hour later, three officers from that department arrived at the Cranston headquarters for the purpose of questioning respondent about the murder.
That same evening, at about 7:45 p.m., respondent’s sister telephoned the Public Defender’s Office to obtain legal assistance for her brother. Her sole concern was the breaking and entering charge, as she was unaware that respondent was then under suspicion for murder. She asked for Richard Casparian who had been scheduled to meet with respondent earlier that afternoon to discuss another charge unrelated to either the break-in or the murder. As soon as the conversation ended, the attorney who took the call attempted to reach Mr. Casparian. When those efforts were unsuccessful, she telephoned Allegra Munson, another Assistant Public Defender, and told her about respondent’s arrest and his sister’s subsequent request that the office represent him.
At 8:15 p.m., Ms. Munson telephoned the Cranston police station and asked that her call be transferred to the detective division. In the words of the Supreme Court of Rhode Island, whose factual findings we treat as presumptively correct, the conversation proceeded as follows:
“A male voice responded with the word ‘Detectives.’ Ms. Munson identified herself and asked if Brian Burbine was being held; the person responded affirmatively. Ms. Munson explained to the person that Burbine was represented by attorney Casparian who was not available; she further stated that she would act as Burbine’s legal counsel in the event that the police intended to place him in a lineup or question him. The unidentified person told Ms. Munson that the police would not be questioning Burbine or putting him in a lineup and that they were through with him for the night. Ms. Munson was not informed that the Providence Police were at the Cranston police station or that Burbine was a suspect in Mary’s murder.”
At all relevant times, respondent was unaware of his sister’s efforts to retain counsel and of the fact and contents of Ms. Munson’s telephone conversation.
Less than an hour later, the police brought respondent to an interrogation room and conducted the first of a series of interviews concerning the murder. Prior to each session, respondent was informed of his Miranda rights, and on three separate occasions he signed a written form acknowledging that he understood his right to the presence of an attorney and explicitly indicating that he “[did] not want an attorney called or appointed for [him]” before he gave a statement. Uncontradicted evidence at the suppression hearing indicated that at least twice during the course of the evening, respondent was left in a room where he had access to a telephone, which he apparently declined to use. Eventually, respondent signed three written statements fully admitting to the murder.
Prior to trial, respondent moved to suppress the statements. The court denied the motion, finding that respondent had received the Miranda warnings and had “knowingly, intelligently, and voluntarily waived his privilege against self-incrimination [and] his right to counsel.” Rejecting the contrary testimony of the police, the court found that Ms. Munson did telephone the detective bureau on the evening in question, but concluded that “there was no … conspiracy or collusion on the part of the Cranston Police Department to secrete this defendant from his attorney.” In any event, the court held, the constitutional right to request the presence of an attorney belongs solely to the defendant and may not be asserted by his lawyer. Because the evidence was clear that respondent never asked for the services of an attorney, the telephone call had no relevance to the validity of the waiver or the admissibility of the statements.
The jury found respondent guilty of murder in the first degree, and he appealed to the Supreme Court of Rhode Island. A divided court rejected his contention that the Fifth and Fourteenth Amendments to the Constitution required the suppression of the inculpatory statements and affirmed the conviction. Failure to inform respondent of Ms. Munson’s efforts to represent him, the court held, did not undermine the validity of the waivers. “It hardly seems conceivable that the additional information that an attorney whom he did not know had called the police station would have added significantly to the quantum of information necessary for the accused to make an informed decision as to waiver.” Nor, the court concluded, did Miranda v. Arizona or any other decision of this Court independently require the police to honor Ms. Munson’s request that interrogation not proceed in her absence. In reaching that conclusion, the court noted that because two different police departments were operating in the Cranston station house on the evening in question, the record supported the trial court’s finding that there was no “conspiracy or collusion” to prevent Ms. Munson from seeing respondent. In any case, the court held, the right to the presence of counsel belongs solely to the accused and may not be asserted by “benign third parties, whether or not they happen to be attorneys.”
After unsuccessfully petitioning the United States District Court for the District of Rhode Island for a writ of habeas corpus, respondent appealed to the Court of Appeals for the First Circuit. That court reversed. Finding it unnecessary to reach any arguments under the Sixth and Fourteenth Amendments, the court held that the police’s conduct had fatally tainted respondent’s “otherwise valid” waiver of his Fifth Amendment privilege against self-incrimination and right to counsel. The court reasoned that by failing to inform respondent that an attorney had called and that she had been assured that no questioning would take place until the next day, the police had deprived respondent of information crucial to his ability to waive his rights knowingly and intelligently. The court also found that the record would support “no other explanation for the refusal to tell Burbine of Attorney Munson’s call than … deliberate or reckless irresponsibility.” This kind of “blameworthy action by the police,” the court concluded, together with respondent’s ignorance of the telephone call, “vitiate[d] any claim that [the] waiver of counsel was knowing and voluntary.”
We granted certiorari to decide whether a prearraignment confession preceded by an otherwise valid waiver must be suppressed either because the police misinformed an inquiring attorney about their plans concerning the suspect or because they failed to inform the suspect of the attorney’s efforts to reach him. We now reverse.
II
Respondent does not dispute that the Providence police followed the[] [Miranda] procedures with precision. The record amply supports the state-court findings that the police administered the required warnings, sought to assure that respondent understood his rights, and obtained an express written waiver prior to eliciting each of the three statements. Nor does respondent contest the Rhode Island courts’ determination that he at no point requested the presence of a lawyer. He contends instead that the confessions must be suppressed because the police’s failure to inform him of the attorney’s telephone call deprived him of information essential to his ability to knowingly waive his Fifth Amendment rights. In the alternative, he suggests that to fully protect the Fifth Amendment values served by Miranda, we should extend that decision to condemn the conduct of the Providence police. We address each contention in turn.
A
Miranda holds that “[t]he defendant may waive effectuation” of the rights conveyed in the warnings “provided the waiver is made voluntarily, knowingly and intelligently.” The inquiry has two distinct dimensions. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
Under this standard, we have no doubt that respondent validly waived his right to remain silent and to the presence of counsel. The voluntariness of the waiver is not at issue. As the Court of Appeals correctly acknowledged, the record is devoid of any suggestion that police resorted to physical or psychological pressure to elicit the statements. Indeed it appears that it was respondent, and not the police, who spontaneously initiated the conversation that led to the first and most damaging confession. Nor is there any question about respondent’s comprehension of the full panoply of rights set out in the Miranda warnings and of the potential consequences of a decision to relinquish them. Nonetheless, the Court of Appeals believed that the “[d]eliberate or reckless” conduct of the police, in particular their failure to inform respondent of the telephone call, fatally undermined the validity of the otherwise proper waiver. We find this conclusion untenable as a matter of both logic and precedent.
Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. Under the analysis of the Court of Appeals, the same defendant, armed with the same information and confronted with precisely the same police conduct, would have knowingly waived his Miranda rights had a lawyer not telephoned the police station to inquire about his status. Nothing in any of our waiver decisions or in our understanding of the essential components of a valid waiver requires so incongruous a result. No doubt the additional information would have been useful to respondent; perhaps even it might have affected his decision to confess. But we have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights. Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law. The Court of Appeals’ conclusion to the contrary was in error.
Nor do we believe that the level of the police’s culpability in failing to inform respondent of the telephone call has any bearing on the validity of the waivers. In light of the state-court findings that there was no “conspiracy or collusion” on the part of the police, we have serious doubts about whether the Court of Appeals was free to conclude that their conduct constituted “deliberate or reckless irresponsibility.” But whether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of respondent’s election to abandon his rights. Although highly inappropriate, even deliberate deception of an attorney could not possibly affect a suspect’s decision to waive his Miranda rights unless he were at least aware of the incident. Nor was the failure to inform respondent of the telephone call the kind of “trick[ery]” that can vitiate the validity of a waiver. Granting that the “deliberate or reckless” withholding of information is objectionable as a matter of ethics, such conduct is only relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. Because respondent’s voluntary decision to speak was made with full awareness and comprehension of all the information Miranda requires the police to convey, the waivers were valid.
B
At oral argument respondent acknowledged that a constitutional rule requiring the police to inform a suspect of an attorney’s efforts to reach him would represent a significant extension of our precedents. He contends, however, that the conduct of the Providence police was so inimical to the Fifth Amendment values Miranda seeks to protect that we should read that decision to condemn their behavior. Regardless of any issue of waiver, he urges, the Fifth Amendment requires the reversal of a conviction if the police are less than forthright in their dealings with an attorney or if they fail to tell a suspect of a lawyer’s unilateral efforts to contact him. Because the proposed modification ignores the underlying purposes of the Miranda rules and because we think that the decision as written strikes the proper balance between society’s legitimate law enforcement interests and the protection of the defendant’s Fifth Amendment rights, we decline the invitation to further extend Miranda’s reach.
At the outset, while we share respondent’s distaste for the deliberate misleading of an officer of the court, reading Miranda to forbid police deception of an attorney “would cut [the decision] completely loose from its own explicitly stated rationale.” As is now well established, “[t]he … Miranda warnings are ‘not themselves rights protected by the Constitution but [are] instead measures to insure that the [suspect’s] right against compulsory self-incrimination [is] protected.’” Their objective is not to mold police conduct for its own sake. Nothing in the Constitution vests in us the authority to mandate a code of behavior for state officials wholly unconnected to any federal right or privilege. The purpose of the Miranda warnings instead is to dissipate the compulsion inherent in custodial interrogation and, in so doing, guard against abridgment of the suspect’s Fifth Amendment rights. Clearly, a rule that focuses on how the police treat an attorney—conduct that has no relevance at all to the degree of compulsion experienced by the defendant during interrogation—would ignore both Miranda’s mission and its only source of legitimacy.
Nor are we prepared to adopt a rule requiring that the police inform a suspect of an attorney’s efforts to reach him. While such a rule might add marginally to Miranda’s goal of dispelling the compulsion inherent in custodial interrogation, overriding practical considerations counsel against its adoption.
Moreover, problems of clarity to one side, reading Miranda to require the police in each instance to inform a suspect of an attorney’s efforts to reach him would work a substantial and, we think, inappropriate shift in the subtle balance struck in that decision. Custodial interrogations implicate two competing concerns. On the one hand, “the need for police questioning as a tool for effective enforcement of criminal laws” cannot be doubted. Admissions of guilt are more than merely “desirable”; they are essential to society’s compelling interest in finding, convicting, and punishing those who violate the law. On the other hand, the Court has recognized that the interrogation process is “inherently coercive” and that, as a consequence, there exists a substantial risk that the police will inadvertently traverse the fine line between legitimate efforts to elicit admissions and constitutionally impermissible compulsion. Miranda attempted to reconcile these opposing concerns by giving the defendant the power to exert some control over the course of the interrogation. Declining to adopt the more extreme position that the actual presence of a lawyer was necessary to dispel the coercion inherent in custodial interrogation, the Court found that the suspect’s Fifth Amendment rights could be adequately protected by less intrusive means. Police questioning, often an essential part of the investigatory process, could continue in its traditional form, the Court held, but only if the suspect clearly understood that, at any time, he could bring the proceeding to a halt or, short of that, call in an attorney to give advice and monitor the conduct of his interrogators.
The position urged by respondent would upset this carefully drawn approach in a manner that is both unnecessary for the protection of the Fifth Amendment privilege and injurious to legitimate law enforcement. Because, as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process, a rule requiring the police to inform the suspect of an attorney’s efforts to contact him would contribute to the protection of the Fifth Amendment privilege only incidentally, if at all. This minimal benefit, however, would come at a substantial cost to society’s legitimate and substantial interest in securing admissions of guilt. Indeed, the very premise of the Court of Appeals was not that awareness of Ms. Munson’s phone call would have dissipated the coercion of the interrogation room, but that it might have convinced respondent not to speak at all. Because neither the letter nor purposes of Miranda require this additional handicap on otherwise permissible investigatory efforts, we are unwilling to expand the Miranda rules to require the police to keep the suspect abreast of the status of his legal representation.
III
[The Court analyzed and rejected respondent’s Sixth Amendment argument because “the events that led to the inculpatory statements preceded the formal initiation of adversary judicial proceedings.”]
IV
[The Court rejected respondent’s Due Process argument because “the challenged conduct falls short of the kind of misbehavior that so shocks the sensibilities of civilized society as to warrant a federal intrusion into the criminal processes of the States.”]
We hold therefore that the Court of Appeals erred in finding that the Federal Constitution required the exclusion of the three inculpatory statements. Accordingly, we reverse and remand for proceedings consistent with this opinion.
Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.
This case poses fundamental questions about our system of justice. As this Court has long recognized “ours is an accusatorial and not an inquisitorial system.” The Court’s opinion today represents a startling departure from that basic insight.
The recognition that ours is an accusatorial, and not an inquisitorial system [] requires that the government’s actions, even in responding to this brutal crime, respect those liberties and rights that distinguish this society from most others. As Justice Jackson observed shortly after his return from Nuremberg, cases of this kind present “a real dilemma in a free society … for the defendant is shielded by such safeguards as no system of law except the Anglo-American concedes to him.” Justice Frankfurter similarly emphasized that it is “a fair summary of history to say that the safeguards of liberty have been forged in controversies involving not very nice people.” And, almost a century and a half ago, Macaulay observed that the guilt of Titus Oates could not justify his conviction by improper methods: “That Oates was a bad man is not a sufficient excuse; for the guilty are almost always the first to suffer those hardships which are afterwards used as precedents against the innocent.”
It is not only the Court’s ultimate conclusion that is deeply disturbing; it is also its manner of reaching that conclusion. The Court completely rejects an entire body of law on the subject—the many carefully reasoned state decisions that have come to precisely the opposite conclusion. The Court similarly dismisses the fact that the police deception which it sanctions quite clearly violates the American Bar Association’s Standards for Criminal Justice—Standards which THE CHIEF JUSTICE has described as “the single most comprehensive and probably the most monumental undertaking in the field of criminal justice ever attempted by the American legal profession in our national history,” and which this Court frequently finds helpful. And, of course, the Court dismisses the fact that the American Bar Association has emphatically endorsed the prevailing state-court position and expressed its serious concern about the effect that a contrary view—a view, such as the Court’s, that exalts incommunicado interrogation, sanctions police deception, and demeans the right to consult with an attorney—will have in police stations and courtrooms throughout this Nation. Of greatest importance, the Court misapprehends or rejects the central principles that have, for several decades, animated this Court’s decisions concerning incommunicado interrogation.
This case turns on a proper appraisal of the role of the lawyer in our society. If a lawyer is seen as a nettlesome obstacle to the pursuit of wrongdoers—as in an inquisitorial society—then the Court’s decision today makes a good deal of sense. If a lawyer is seen as an aid to the understanding and protection of constitutional rights—as in an accusatorial society—then today’s decision makes no sense at all.
Like the conduct of the police in the Cranston station on the evening of June 29, 1977, the Court’s opinion today serves the goal of insuring that the perpetrator of a vile crime is punished. Like the police on that June night as well, however, the Court has trampled on well-established legal principles and flouted the spirit of our accusatorial system of justice.
I respectfully dissent.
Notes, Comments, and Questions
In Miranda, the Court stated that a waiver of rights obtained by trickery will not be valid. “[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.” With the decisions in Colorado v. Spring (Chapter 25) and in Moran v. Burbine (above), the Court announced that mere failure to give useful information to a suspect is not the sort of “trick” that renders a waiver invalid.
Imagine, however, that instead of merely failing to mention the lawyer hired by the sister of their suspect, Burbine, the Cranston police instead lied about the lawyer’s existence. In other words, imagine that Burbine asks a detective, “Has my sister gotten me a lawyer?” The detective replies, despite knowing about the sister’s call, “We haven’t heard from your sister about a lawyer or anything else.” Is that the sort of trick that would make Burbine’s subsequent waiver invalid?
Similarly, imagine that instead of police simply staying quiet about the “real” crime that interested them, officers lied to Spring about it. That is, Spring asks, “Is this really about some firearms charge, or are you holding me for some other reason?” Then an officer replies, despite secretly desiring to question Spring about a shooting, “I can’t think of any other reason.” If officers eventually do ask about the shooting, is that the sort of trick that would make Spring’s subsequent waiver invalid?
In the next case, the Court considers what the prosecution must show to demonstrate that a suspect engaged in a “course of conduct indicating waiver” such that a court can find a waiver of Miranda rights without an express oral or written waiver.
Supreme Court of the United States
Mary Berghuis v. Van Chester Thomkins
Decided June 1, 2010 – 560 U.S. 370
Justice KENNEDY delivered the opinion of the Court.
The United States Court of Appeals for the Sixth Circuit, in a habeas corpus proceeding challenging a Michigan conviction for first-degree murder and certain other offenses, ruled that there had been two separate constitutional errors in the trial that led to the jury’s guilty verdict. First, the Court of Appeals determined that a statement by the accused, relied on at trial by the prosecution, had been elicited in violation of Miranda v. Arizona. Second, it found that failure to ask for an instruction relating to testimony from an accomplice was ineffective assistance by defense counsel. Both of these contentions had been rejected in Michigan courts and in the habeas corpus proceedings before the United States District Court. Certiorari was granted to review the decision by the Court of Appeals on both points. The warden of a Michigan correctional facility is the petitioner here, and Van Chester Thompkins, who was convicted, is the respondent.
A
On January 10, 2000, a shooting occurred outside a mall in Southfield, Michigan. Among the victims was Samuel Morris, who died from multiple gunshot wounds. The other victim, Frederick France, recovered from his injuries and later testified. Thompkins, who was a suspect, fled. About one year later he was found in Ohio and arrested there.
Two Southfield police officers traveled to Ohio to interrogate Thompkins, then awaiting transfer to Michigan. The interrogation began around 1:30 p.m. and lasted about three hours. The interrogation was conducted in a room that was 8 by 10 feet, and Thompkins sat in a chair that resembled a school desk (it had an arm on it that swings around to provide a surface to write on). At the beginning of the interrogation, one of the officers, Detective Helgert, presented Thompkins with a form derived from the Miranda rule. It stated:
“NOTIFICATION OF CONSTITUTIONAL RIGHTS AND STATEMENT
“1. You have the right to remain silent.
“2. Anything you say can and will be used against you in a court of law.
“3. You have a right to talk to a lawyer before answering any questions and you have the right to have a lawyer present with you while you are answering any questions.
“4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one.
“5. You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.”
Helgert asked Thompkins to read the fifth warning out loud. Thompkins complied. Helgert later said this was to ensure that Thompkins could read, and Helgert concluded that Thompkins understood English. Helgert then read the other four Miranda warnings out loud and asked Thompkins to sign the form to demonstrate that he understood his rights. Thompkins declined to sign the form. The record contains conflicting evidence about whether Thompkins then verbally confirmed that he understood the rights listed on the form.
Officers began an interrogation. At no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. Thompkins was “[l]argely” silent during the interrogation, which lasted about three hours. He did give a few limited verbal responses, however, such as “yeah,” “no,” or “I don’t know.” And on occasion he communicated by nodding his head. Thompkins also said that he “didn’t want a peppermint” that was offered to him by the police and that the chair he was “sitting in was hard.”
About 2 hours and 45 minutes into the interrogation, Helgert asked Thompkins, “Do you believe in God?” Thompkins made eye contact with Helgert and said “Yes,” as his eyes “well[ed] up with tears.” Helgert asked, “Do you pray to God?” Thompkins said “Yes.” Helgert asked, “Do you pray to God to forgive you for shooting that boy down?” Thompkins answered “Yes” and looked away. Thompkins refused to make a written confession, and the interrogation ended about 15 minutes later.
Thompkins was charged with first-degree murder, assault with intent to commit murder, and certain firearms-related offenses. He moved to suppress the statements made during the interrogation. He argued that he had invoked his Fifth Amendment right to remain silent, requiring police to end the interrogation at once, that he had not waived his right to remain silent, and that his inculpatory statements were involuntary. The trial court denied the motion.
The jury found Thompkins guilty on all counts. He was sentenced to life in prison without parole.
B
The trial court denied a motion for new trial filed by Thompkins’ appellate counsel. Thompkins appealed [] the trial court’s refusal to suppress his pretrial statements under Miranda. The Michigan Court of Appeals rejected the Miranda claim, ruling that Thompkins had not invoked his right to remain silent and had waived it. The Michigan Supreme Court denied discretionary review.
Thompkins filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. The District Court rejected Thompkins’ Miranda [] claim[]. The District Court reasoned that Thompkins did not invoke his right to remain silent and was not coerced into making statements during the interrogation. It held further that the Michigan Court of Appeals was not unreasonable in determining that Thompkins had waived his right to remain silent.
The United States Court of Appeals for the Sixth Circuit reversed, ruling for Thompkins on [] his Miranda … claim[]. The Court of Appeals ruled that the state court, in rejecting Thompkins’ Miranda claim, unreasonably applied clearly established federal law and based its decision on an unreasonable determination of the facts. The Court of Appeals acknowledged that a waiver of the right to remain silent need not be express, as it can be “‘inferred from the actions and words of the person interrogated.’” The panel held, nevertheless, that the state court was unreasonable in finding an implied waiver in the circumstances here. The Court of Appeals found that the state court unreasonably determined the facts because “the evidence demonstrates that Thompkins was silent for two hours and forty-five minutes.” According to the Court of Appeals, Thompkins’ “persistent silence for nearly three hours in response to questioning and repeated invitations to tell his side of the story offered a clear and unequivocal message to the officers: Thompkins did not wish to waive his rights.”
We granted certiorari.
III
All concede that the warning given in this case was in full compliance with the [Miranda] requirements. The dispute centers on the response—or nonresponse—from the suspect.
A
Thompkins makes various arguments that his answers to questions from the detectives were inadmissible. He first contends that he “invoke[d] his privilege” to remain silent by not saying anything for a sufficient period of time, so the interrogation should have “cease[d]” before he made his inculpatory statements.
This argument is unpersuasive. In the context of invoking the Miranda right to counsel, the Court [has] held that a suspect must do so “unambiguously.” If an accused makes a statement concerning the right to counsel “that is ambiguous or equivocal” or makes no statement, the police are not required to end the interrogation, or ask questions to clarify whether the accused wants to invoke his or her Miranda rights.
The Court has not yet stated whether an invocation of the right to remain silent can be ambiguous or equivocal, but there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel. Both protect the privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked.
There is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously. A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that “avoid[s] difficulties of proof and … provide[s] guidance to officers” on how to proceed in the face of ambiguity. If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression “if they guess wrong.” Suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity. Treating an ambiguous or equivocal act, omission, or statement as an invocation of Miranda rights “might add marginally to Miranda’s goal of dispelling the compulsion inherent in custodial interrogation.” But “as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process.”
Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his “‘right to cut off questioning.’” Here he did neither, so he did not invoke his right to remain silent.
B
We next consider whether Thompkins waived his right to remain silent. The course of decisions since Miranda, informed by the application of Miranda warnings in the whole course of law enforcement, demonstrates that waivers can be established even absent formal or express statements of waiver that would be expected in, say, a judicial hearing to determine if a guilty plea has been properly entered. The main purpose of Miranda is to ensure that an accused is advised of and understands the right to remain silent and the right to counsel. Thus, “[i]f anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision’s core ruling that unwarned statements may not be used as evidence in the prosecution’s case in chief.”
The prosecution [] does not need to show that a waiver of Miranda rights was express. An “implicit waiver” of the “right to remain silent” is sufficient to admit a suspect’s statement into evidence. If the State establishes that a Miranda warning was given and the accused made an uncoerced statement, this showing, standing alone, is insufficient to demonstrate “a valid waiver” of Miranda rights. The prosecution must make the additional showing that the accused understood these rights. Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.
Although Miranda imposes on the police a rule that is both formalistic and practical when it prevents them from interrogating suspects without first providing them with a Miranda warning, it does not impose a formalistic waiver procedure that a suspect must follow to relinquish those rights. As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford. Miranda rights can [] be waived through means less formal than a typical waiver on the record in a courtroom, given the practical constraints and necessities of interrogation and the fact that Miranda’s main protection lies in advising defendants of their rights.
The record in this case shows that Thompkins waived his right to remain silent. First, there is no contention that Thompkins did not understand his rights; and from this it follows that he knew what he gave up when he spoke. There was more than enough evidence in the record to conclude that Thompkins understood his Miranda rights. Thompkins received a written copy of the Miranda warnings; Detective Helgert determined that Thompkins could read and understand English; and Thompkins was given time to read the warnings. Thompkins, furthermore, read aloud the fifth warning, which stated that “you have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.” He was thus aware that his right to remain silent would not dissipate after a certain amount of time and that police would have to honor his right to be silent and his right to counsel during the whole course of interrogation. Those rights, the warning made clear, could be asserted at any time. Helgert, moreover, read the warnings aloud.
Second, Thompkins’ answer to Detective Helgert’s question about whether Thompkins prayed to God for forgiveness for shooting the victim is a “course of conduct indicating waiver” of the right to remain silent. If Thompkins wanted to remain silent, he could have said nothing in response to Helgert’s questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation. The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver. Police are not required to rewarn suspects from time to time. Thompkins’ answer to Helgert’s question about praying to God for forgiveness for shooting the victim was sufficient to show a course of conduct indicating waiver. This is confirmed by the fact that before then Thompkins had given sporadic answers to questions throughout the interrogation.
Third, there is no evidence that Thompkins’ statement was coerced. Thompkins does not claim that police threatened or injured him during the interrogation or that he was in any way fearful. The interrogation was conducted in a standard-sized room in the middle of the afternoon. It is true that apparently he was in a straight-backed chair for three hours, but there is no authority for the proposition that an interrogation of this length is inherently coercive. Indeed, even where interrogations of greater duration were held to be improper, they were accompanied, as this one was not, by other facts indicating coercion, such as an incapacitated and sedated suspect, sleep and food deprivation, and threats. The fact that Helgert’s question referred to Thompkins’ religious beliefs also did not render Thompkins’ statement involuntary. “[T]he Fifth Amendment privilege is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’” In these circumstances, Thompkins knowingly and voluntarily made a statement to police, so he waived his right to remain silent.
C
Thompkins next argues that, even if his answer to Detective Helgert could constitute a waiver of his right to remain silent, the police were not allowed to question him until they obtained a waiver first. [North Carolina v.] Butler forecloses this argument. The Butler Court held that courts can infer a waiver of Miranda rights “from the actions and words of the person interrogated.” This principle would be inconsistent with a rule that requires a waiver at the outset. This holding also makes sense given that “the primary protection afforded suspects subject[ed] to custodial interrogation is the Miranda warnings themselves.” The Miranda rule and its requirements are met if a suspect receives adequate Miranda warnings, understands them, and has an opportunity to invoke the rights before giving any answers or admissions. Any waiver, express or implied, may be contradicted by an invocation at any time. If the right to counsel or the right to remain silent is invoked at any point during questioning, further interrogation must cease.
Interrogation provides the suspect with additional information that can put his or her decision to waive, or not to invoke, into perspective. As questioning commences and then continues, the suspect has the opportunity to consider the choices he or she faces and to make a more informed decision, either to insist on silence or to cooperate. When the suspect knows that Miranda rights can be invoked at any time, he or she has the opportunity to reassess his or her immediate and long-term interests. Cooperation with the police may result in more favorable treatment for the suspect; the apprehension of accomplices; the prevention of continuing injury and fear; beginning steps toward relief or solace for the victims; and the beginning of the suspect’s own return to the law and the social order it seeks to protect.
In order for an accused’s statement to be admissible at trial, police must have given the accused a Miranda warning. If that condition is established, the court can proceed to consider whether there has been an express or implied waiver of Miranda rights. In making its ruling on the admissibility of a statement made during custodial questioning, the trial court, of course, considers whether there is evidence to support the conclusion that, from the whole course of questioning, an express or implied waiver has been established. Thus, after giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived his or her Miranda rights. On these premises, it follows the police were not required to obtain a waiver of Thompkins’ Miranda rights before commencing the interrogation.
D
In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police. The police, moreover, were not required to obtain a waiver of Thompkins’ right to remain silent before interrogating him. The state court’s decision rejecting Thompkins’ Miranda claim was thus correct.
IV
[The Court held that Thomkins could not show prejudice from ineffective assistance of counsel.]
The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to deny the petition.
Justice SOTOMAYOR, with whom Justice STEVENS, Justice GINSBURG, and Justice BREYER join, dissenting.
The Court concludes today that a criminal suspect waives his right to remain silent if, after sitting tacit and uncommunicative through nearly three hours of police interrogation, he utters a few one-word responses. The Court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of “waiver” must, counterintuitively, speak—and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police. Both propositions mark a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided during custodial interrogation.
This Court’s decisions subsequent to Miranda have emphasized the prosecution’s “heavy burden” in proving waiver. We have also reaffirmed that a court may not presume waiver from a suspect’s silence or from the mere fact that a confession was eventually obtained.
Even in concluding that Miranda does not invariably require an express waiver of the right to silence or the right to counsel, this Court in Butler made clear that the prosecution bears a substantial burden in establishing an implied waiver.
It is undisputed here that Thompkins never expressly waived his right to remain silent. His refusal to sign even an acknowledgment that he understood his Miranda rights evinces, if anything, an intent not to waive those rights. That Thompkins did not make the inculpatory statements at issue until after approximately 2 hours and 45 minutes of interrogation serves as “strong evidence” against waiver. Miranda and Butler expressly preclude the possibility that the inculpatory statements themselves are sufficient to establish waiver.
In these circumstances, Thompkins’ “actions and words” preceding the inculpatory statements simply do not evidence a “course of conduct indicating waiver” sufficient to carry the prosecution’s burden. Although the Michigan court stated that Thompkins “sporadically” participated in the interview, that court’s opinion and the record before us are silent as to the subject matter or context of even a single question to which Thompkins purportedly responded, other than the exchange about God and the statements respecting the peppermint and the chair. Unlike in Butler, Thompkins made no initial declaration akin to “I will talk to you.” Indeed, Michigan and the United States concede that no waiver occurred in this case until Thompkins responded “yes” to the questions about God. I believe it is objectively unreasonable under our clearly established precedents to conclude the prosecution met its “heavy burden” of proof on a record consisting of three one-word answers, following 2 hours and 45 minutes of silence punctuated by a few largely nonverbal responses to unidentified questions.
Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded. Today’s broad new rules are all the more unfortunate because they are unnecessary to the disposition of the case before us. I respectfully dissent.
* * *
What Counts as an Unambiguous Invocation of Miranda Rights?
As the Court noted in Berghuis v. Thomkins, only an “unambiguous invocation of Miranda rights” by a suspect is effective. Interrogation must cease upon an unambiguous invocation of either the right to counsel or the right to silence. In the next case, the Court considered what qualifies as an unambiguous invocation.
Supreme Court of the United States
Robert L. Davis v. United States
Decided June 24, 1994 – 512 U.S. 452
Justice O’CONNOR delivered the opinion of the Court.
In Edwards v. Arizona, 451 U.S. 477, (1981), we held that law enforcement officers must immediately cease questioning a suspect who has clearly asserted his right to have counsel present during custodial interrogation. In this case we decide how law enforcement officers should respond when a suspect makes a reference to counsel that is insufficiently clear to invoke the Edwards prohibition on further questioning.
I
Pool brought trouble—not to River City, but to the Charleston Naval Base. Petitioner, a member of the United States Navy, spent the evening of October 2, 1988, shooting pool at a club on the base. Another sailor, Keith Shackleton, lost a game and a \$30 wager to petitioner, but Shackleton refused to pay. After the club closed, Shackleton was beaten to death with a pool cue on a loading dock behind the commissary. The body was found early the next morning.
The investigation by the Naval Investigative Service (NIS) gradually focused on petitioner. Investigative agents determined that petitioner was at the club that evening, and that he was absent without authorization from his duty station the next morning. The agents also learned that only privately owned pool cues could be removed from the club premises, and that petitioner owned two cues—one of which had a bloodstain on it. The agents were told by various people that petitioner either had admitted committing the crime or had recounted details that clearly indicated his involvement in the killing.
On November 4, 1988, petitioner was interviewed at the NIS office. As required by military law, the agents advised petitioner that he was a suspect in the killing, that he was not required to make a statement, that any statement could be used against him at a trial by court-martial, and that he was entitled to speak with an attorney and have an attorney present during questioning. Petitioner waived his rights to remain silent and to counsel, both orally and in writing.
About an hour and a half into the interview, petitioner said, “Maybe I should talk to a lawyer.” According to the uncontradicted testimony of one of the interviewing agents, the interview then proceeded as follows:
“[We m]ade it very clear that we’re not here to violate his rights, that if he wants a lawyer, then we will stop any kind of questioning with him, that we weren’t going to pursue the matter unless we have it clarified is he asking for a lawyer or is he just making a comment about a lawyer, and he said, [‘]No, I’m not asking for a lawyer,’ and then he continued on, and said, ‘No, I don’t want a lawyer.’”
After a short break, the agents reminded petitioner of his rights to remain silent and to counsel. The interview then continued for another hour, until petitioner said, “I think I want a lawyer before I say anything else.” At that point, questioning ceased.
At his general court-martial, petitioner moved to suppress statements made during the November 4 interview. The Military Judge denied the motion, holding that “the mention of a lawyer by [petitioner] during the course of the interrogation [was] not in the form of a request for counsel and … the agents properly determined that [petitioner] was not indicating a desire for or invoking his right to counsel.” Petitioner was convicted on one specification of unpremeditated murder.
The United States Court of Military Appeals granted discretionary review and affirmed. The court recognized that the state and federal courts have developed three different approaches to a suspect’s ambiguous or equivocal request for counsel:
“Some jurisdictions have held that any mention of counsel, however ambiguous, is sufficient to require that all questioning cease. Others have attempted to define a threshold standard of clarity for invoking the right to counsel and have held that comments falling short of the threshold do not invoke the right to counsel. Some jurisdictions … have held that all interrogation about the offense must immediately cease whenever a suspect mentions counsel, but they allow interrogators to ask narrow questions designed to clarify the earlier statement and the [suspect’s] desires respecting counsel.”
Applying the third approach, the court held that petitioner’s comment was ambiguous, and that the NIS agents properly clarified petitioner’s wishes with respect to counsel before continuing questioning him about the offense.
Although we have twice previously noted the varying approaches the lower courts have adopted with respect to ambiguous or equivocal references to counsel during custodial interrogation, we have not addressed the issue on the merits. We granted certiorari to do so.
II
The Sixth Amendment right to counsel attaches only at the initiation of adversary criminal proceedings, and before proceedings are initiated a suspect in a criminal investigation has no constitutional right to the assistance of counsel. Nevertheless, we held in Miranda v. Arizona that a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and that the police must explain this right to him before questioning begins. The right to counsel established in Miranda was one of a “series of recommended ‘procedural safeguards’ … [that] were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected.”
The right to counsel recognized in Miranda is sufficiently important to suspects in criminal investigations, we have held, that it “requir[es] the special protection of the knowing and intelligent waiver standard.” If the suspect effectively waives his right to counsel after receiving the Miranda warnings, law enforcement officers are free to question him. But if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation. This “second layer of prophylaxis for the Miranda right to counsel” is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” To that end, we have held that a suspect who has invoked the right to counsel cannot be questioned regarding any offense unless an attorney is actually present.
The applicability of [this rule] requires courts to “determine whether the accused actually invoked his right to counsel.” To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry. Invocation of the Miranda right to counsel “requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.
Rather, the suspect must unambiguously request counsel. As we have observed, “a statement either is such an assertion of the right to counsel or it is not.” Although a suspect need not “speak with the discrimination of an Oxford don,” post (SOUTER, J., concurring in judgment), he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect.
We decline petitioner’s invitation to require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney. [T]he police must respect a suspect’s wishes regarding his right to have an attorney present during custodial interrogation. But when the officers conducting the questioning reasonably do not know whether or not the suspect wants a lawyer, a rule requiring the immediate cessation of questioning “would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity,” because it would needlessly prevent the police from questioning a suspect in the absence of counsel even if the suspect did not wish to have a lawyer present.
We recognize that requiring a clear assertion of the right to counsel might disadvantage some suspects who—because of fear, intimidation, lack of linguistic skills, or a variety of other reasons—will not clearly articulate their right to counsel although they actually want to have a lawyer present. But the primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves. “[F]ull comprehension of the rights to remain silent and request an attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation process.” A suspect who knowingly and voluntarily waives his right to counsel after having that right explained to him has indicated his willingness to deal with the police unassisted. Although Edwards provides an additional protection—if a suspect subsequently requests an attorney, questioning must cease—it is one that must be affirmatively invoked by the suspect.
In considering how a suspect must invoke the right to counsel, we must consider the other side of the Miranda equation: the need for effective law enforcement. Although the courts ensure compliance with the Miranda requirements through the exclusionary rule, it is police officers who must actually decide whether or not they can question a suspect. The Edwards rule—questioning must cease if the suspect asks for a lawyer—provides a bright line that can be applied by officers in the real world of investigation and interrogation without unduly hampering the gathering of information. But if we were to require questioning to cease if a suspect makes a statement that might be a request for an attorney, this clarity and ease of application would be lost. Police officers would be forced to make difficult judgment calls about whether the suspect in fact wants a lawyer even though he has not said so, with the threat of suppression if they guess wrong. We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.
Of course, when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. That was the procedure followed by the NIS agents in this case. Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect’s statement regarding counsel. But we decline to adopt a rule requiring officers to ask clarifying questions. If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.
To recapitulate: We held in Miranda that a suspect is entitled to the assistance of counsel during custodial interrogation even though the Constitution does not provide for such assistance. We held in Edwards that if the suspect invokes the right to counsel at any time, the police must immediately cease questioning him until an attorney is present. But we are unwilling to create a third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer. Unless the suspect actually requests an attorney, questioning may continue.
The courts below found that petitioner’s remark to the NIS agents—“Maybe I should talk to a lawyer”—was not a request for counsel, and we see no reason to disturb that conclusion. The NIS agents therefore were not required to stop questioning petitioner, though it was entirely proper for them to clarify whether petitioner in fact wanted a lawyer. Because there is no ground for suppression of petitioner’s statements, the judgment of the Court of Military Appeals is
Affirmed.
Justice SOUTER, with whom Justice BLACKMUN, Justice STEVENS, and Justice GINSBURG join, concurring in the judgment.
In the midst of his questioning by naval investigators, petitioner said “Maybe I should talk to a lawyer.” The investigators promptly stopped questioning Davis about the killing of Keith Shackleton and instead undertook to determine whether he meant to invoke his right to counsel. According to testimony accepted by the courts below, Davis answered the investigators’ questions on that point by saying, “I’m not asking for a lawyer,” and “No, I don’t want to talk to a lawyer.” Only then did the interrogation resume (stopping for good when petitioner said, “I think I want a lawyer before I say anything else”).
I agree with the majority that the Constitution does not forbid law enforcement officers to pose questions (like those directed at Davis) aimed solely at clarifying whether a suspect’s ambiguous reference to counsel was meant to assert his Fifth Amendment right. Accordingly I concur in the judgment affirming Davis’s conviction, resting partly on evidence of statements given after agents ascertained that he did not wish to deal with them through counsel. I cannot, however, join in my colleagues’ further conclusion that if the investigators here had been so inclined, they were at liberty to disregard Davis’s reference to a lawyer entirely, in accordance with a general rule that interrogators have no legal obligation to discover what a custodial subject meant by an ambiguous statement that could reasonably be understood to express a desire to consult a lawyer.
Our own precedent, the reasonable judgments of the majority of the many courts already to have addressed the issue before us, and the advocacy of a considerable body of law enforcement officials are to the contrary. All argue against the Court’s approach today, which draws a sharp line between interrogated suspects who “clearly” assert their right to counsel and those who say something that may, but may not, express a desire for counsel’s presence, the former suspects being assured that questioning will not resume without counsel present, the latter being left to fend for themselves. The concerns of fairness and practicality that have long anchored our Miranda case law point to a different response: when law enforcement officials “reasonably do not know whether or not the suspect wants a lawyer,” they should stop their interrogation and ask him to make his choice clear.
While the question we address today is an open one, its answer requires coherence with nearly three decades of case law addressing the relationship between police and criminal suspects in custodial interrogation. Throughout that period, two precepts have commanded broad assent: that the Miranda safeguards exist “‘to assure that the individual’s right to choose between speech and silence remains unfettered throughout the interrogation process,’” and that the justification for Miranda rules, intended to operate in the real world, “must be consistent with … practical realities.” A rule barring government agents from further interrogation until they determine whether a suspect’s ambiguous statement was meant as a request for counsel fulfills both ambitions. It assures that a suspect’s choice whether or not to deal with police through counsel will be “scrupulously honored,” and it faces both the real-world reasons why misunderstandings arise between suspect and interrogator and the real-world limitations on the capacity of police and trial courts to apply fine distinctions and intricate rules.
Tested against the same two principles, the approach the Court adopts does not fare so well. First, as the majority expressly acknowledges, criminal suspects who may (in Miranda’s words) be “thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures,” would seem an odd group to single out for the Court’s demand of heightened linguistic care. A substantial percentage of them lack anything like a confident command of the English language, and many more will be sufficiently intimidated by the interrogation process or overwhelmed by the uncertainty of their predicament that the ability to speak assertively will abandon them. Indeed, the awareness of just these realities has, in the past, dissuaded the Court from placing any burden of clarity upon individuals in custody, but has led it instead to require that requests for counsel be “give[n] a broad, rather than a narrow, interpretation,” and that courts “indulge every reasonable presumption” that a suspect has not waived his right to counsel under Miranda.
The Court defends as tolerable the certainty that some poorly expressed requests for counsel will be disregarded on the ground that Miranda warnings suffice to alleviate the inherent coercion of the custodial interrogation. But, “[a] once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice” to “assure that the … right to choose between silence and speech remains unfettered throughout the interrogation process.”
Indeed, it is easy, amidst the discussion of layers of protection, to lose sight of a real risk in the majority’s approach, going close to the core of what the Court has held that the Fifth Amendment provides. The experience of the timid or verbally inept suspect (whose existence the Court acknowledges) may not always closely follow that of the defendant in Edwards v. Arizona (whose purported waiver of his right to counsel, made after having invoked the right, was held ineffective, lest police be tempted to “badge[r]” others like him. When a suspect understands his (expressed) wishes to have been ignored (and by hypothesis, he has said something that an objective listener could “reasonably,” although not necessarily, take to be a request), in contravention of the “rights” just read to him by his interrogator, he may well see further objection as futile and confession (true or not) as the only way to end his interrogation.
Nor is it enough to say that a “‘statement either is … an assertion of the right to counsel or it is not.’” While it might be fair to say that every statement is meant either to express a desire to deal with police through counsel or not, this fact does not dictate the rule that interrogators who hear a statement consistent with either possibility may presume the latter and forge ahead; on the contrary, clarification is the intuitively sensible course.
Our cases are best respected by a rule that when a suspect under custodial interrogation makes an ambiguous statement that might reasonably be understood as expressing a wish that a lawyer be summoned (and questioning cease), interrogators’ questions should be confined to verifying whether the individual meant to ask for a lawyer. While there is reason to expect that trial courts will apply today’s ruling sensibly (without requiring criminal suspects to speak with the discrimination of an Oxford don) and that interrogators will continue to follow what the Court rightly calls “good police practice” (compelled up to now by a substantial body of state and Circuit law), I believe that the case law under Miranda does not allow them to do otherwise.
Notes, Comments, and Questions
A recent case from the Supreme Court of Louisiana demonstrates how easily a court can find a suspect’s request for counsel to be “ambiguous.” In State v. Demesme, 228 So.3d 1206 (La. 2017) the defendant argued he was improperly questioned after invoking his right to counsel. The Court rejected his claim, and Justice Scott J. Crichton wrote separately as follows:
“I agree with the Court’s decision to deny the defendant’s writ application and write separately to spotlight the very important constitutional issue regarding the invocation of counsel during a law enforcement interview. The defendant voluntarily agreed to be interviewed twice regarding his alleged sexual misconduct with minors. At both interviews detectives advised the defendant of his Miranda rights and the defendant stated he understood and waived those rights. Nonetheless, the defendant argues he invoked his right to counsel. And the basis for this comes from the second interview, where I believe the defendant ambiguously referenced a lawyer—prefacing that statement with ‘if y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.’”
“In my view, the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel that warrants termination of the interview and does not violate Edwards v. Arizona.”
Justice Crichton’s apparent belief that the defendant said “lawyer dog”—instead of perhaps saying to the detective, “give me a lawyer, dawg”—inspired widespread ridicule. Note, however, that even with a better understanding of common American vernacular, one might still find the request in Demesme to be “ambiguous” under Davis. Because the suspect prefaced his request with “if y’all think I did it,” it might lack sufficient clarity to impose any burden on police—either to cease questioning or to clarify the suspect’s intention. Under the rule proposed in Justice Souter’s concurrence in Davis, which attracted four votes, police would have been required to verify whether the suspect meant to ask for a lawyer before continuing with interrogation.
* * *
In our next chapter, we will examine the consequences of a suspect’s successful invocation of either the right to counsel or the right to silence. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/03%3A_Interrogations/3.05%3A_Chapter_26_-_The_Miranda_Rule-_Waiver.txt |
In our previous chapter, we read that suspects must invoke their rights unambiguously; otherwise, police have no duty to cease questioning or to clarify the suspect’s intent. In this chapter, we examine what happens when suspects do successfully invoke their rights. As we will see, the Court has treated an invocation of the right to silence differently from an invocation of the right to counsel.
Invocation of the Right to Silence
We begin with a case in which a suspect invoked his right to remain silent. The question was how the suspect’s invocation constrained the interrogation tactics of the police. In particular, the Court considered the length of time after invocation that police must wait before again asking a suspect whether he wishes to waive his right to silence.
Supreme Court of the United States
Michigan v. Richard Bert Mosley
Decided Dec. 9, 1975 – 423 U.S. 96
Mr. Justice STEWART delivered the opinion of the Court.
The respondent, Richard Bert Mosley, was arrested in Detroit, Mich., in the early afternoon of April 8, 1971, in connection with robberies that had recently occurred at the Blue Goose Bar and the White Tower Restaurant on that city’s lower east side. The arresting officer, Detective James Cowie of the Armed Robbery Section of the Detroit Police Department, was acting on a tip implicating Mosley and three other men in the robberies. After effecting the arrest, Detective Cowie brought Mosley to the Robbery, Breaking and Entering Bureau of the Police Department, located on the fourth floor of the departmental headquarters building. The officer advised Mosley of his rights under this Court’s decision in Miranda v. Arizona and had him read and sign the department’s constitutional rights notification certificate. After filling out the necessary arrest papers, Cowie began questioning Mosley about the robbery of the White Tower Restaurant. When Mosley said he did not want to answer any questions about the robberies, Cowie promptly ceased the interrogation. The completion of the arrest papers and the questioning of Mosley together took approximately 20 minutes. At no time during the questioning did Mosley indicate a desire to consult with a lawyer, and there is no claim that the procedures followed to this point did not fully comply with the strictures of the Miranda opinion. Mosley was then taken to a ninth-floor cell block.
Shortly after 6 p.m., Detective Hill of the Detroit Police Department Homicide Bureau brought Mosley from the cell block to the fifth-floor office of the Homicide Bureau for questioning about the fatal shooting of a man named Leroy Williams. Williams had been killed on January 9, 1971, during a holdup attempt outside the 101 Ranch Bar in Detroit. Mosley had not been arrested on this charge or interrogated about it by Detective Cowie. Before questioning Mosley about this homicide, Detective Hill carefully advised him of his “Miranda rights.” Mosley read the notification form both silently and aloud, and Detective Hill then read and explained the warnings to him and had him sign the form. Mosley at first denied any involvement in the Williams murder, but after the officer told him that Anthony Smith had confessed to participating in the slaying and had named him as the “shooter,” Mosley made a statement implicating himself in the homicide.1 The interrogation by Detective Hill lasted approximately 15 minutes, and at no time during its course did Mosley ask to consult with a lawyer or indicate that he did not want to discuss the homicide. In short, there is no claim that the procedures followed during Detective Hill’s interrogation of Mosley, standing alone, did not fully comply with the strictures of the Miranda opinion.
Mosley was subsequently charged in a one-count information with first-degree murder. Before the trial he moved to suppress his incriminating statement on a number of grounds, among them the claim that under the doctrine of the Miranda case it was constitutionally impermissible for Detective Hill to question him about the Williams murder after he had told Detective Cowie that he did not want to answer any questions about the robberies. The trial court denied the motion to suppress after an evidentiary hearing, and the incriminating statement was subsequently introduced in evidence against Mosley at his trial. The jury convicted Mosley of first-degree murder, and the court imposed a mandatory sentence of life imprisonment.
On appeal to the Michigan Court of Appeals, Mosley renewed his previous objections to the use of his incriminating statement in evidence. The appellate court reversed the judgment of conviction, holding that Detective Hill’s interrogation of Mosley had been a per se violation of the Miranda doctrine. Accordingly, without reaching Mosley’s other contentions, the Court remanded the case for a new trial with instructions that Mosley’s statement be suppressed as evidence. After further appeal was denied by the Michigan Supreme Court, the State filed a petition for certiorari here. We granted the writ because of the important constitutional question presented.
The issue in this case [] is whether the conduct of the Detroit police that led to Mosley’s incriminating statement did in fact violate the Miranda “guidelines,” so as to render the statement inadmissible in evidence against Mosley at his trial. Resolution of the question turns almost entirely on the interpretation of a single passage in the Miranda opinion, upon which the Michigan appellate court relied in finding a per se violation of Miranda:
“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.”
This passage states that “the interrogation must cease” when the person in custody indicates that “he wishes to remain silent.” It does not state under what circumstances, if any, a resumption of questioning is permissible. The passage could be literally read to mean that a person who has invoked his “right to silence” can never again be subjected to custodial interrogation by any police officer at any time or place on any subject. Another possible construction of the passage would characterize “any statement taken after the person invokes his privilege” as “the product of compulsion” and would therefore mandate its exclusion from evidence, even if it were volunteered by the person in custody without any further interrogation whatever. Or the passage could be interpreted to require only the immediate cessation of questioning, and to permit a resumption of interrogation after a momentary respite.
It is evident that any of these possible literal interpretations would lead to absurd and unintended results. To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned. At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests. Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.
A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt “fully effective means … to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored ….” The critical safeguard identified in the passage at issue is a person’s “right to cut off questioning.” Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his “right to cut off questioning” was “scrupulously honored.”
A review of the circumstances leading to Mosley’s confession reveals that his “right to cut off questioning” was fully respected in this case. Before his initial interrogation, Mosley was carefully advised that he was under no obligation to answer any questions and could remain silent if he wished. He orally acknowledged that he understood the Miranda warnings and then signed a printed notification-of-rights form. When Mosley stated that he did not want to discuss the robberies, Detective Cowie immediately ceased the interrogation and did not try either to resume the questioning or in any way to persuade Mosley to reconsider his position. After an interval of more than two hours, Mosley was questioned by another police officer at another location about an unrelated holdup murder. He was given full and complete Miranda warnings at the outset of the second interrogation. He was thus reminded again that he could remain silent and could consult with a lawyer, and was carefully given a full and fair opportunity to exercise these options. The subsequent questioning did not undercut Mosley’s previous decision not to answer Detective Cowie’s inquiries. Detective Hill did not resume the interrogation about the White Tower Restaurant robbery or inquire about the Blue Goose Bar robbery, but instead focused exclusively on the Leroy Williams homicide, a crime different in nature and in time and place of occurrence from the robberies for which Mosley had been arrested and interrogated by Detective Cowie. Although it is not clear from the record how much Detective Hill knew about the earlier interrogation, his questioning of Mosley about an unrelated homicide was quite consistent with a reasonable interpretation of Mosley’s earlier refusal to answer any questions about the robberies.
This is not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind. In contrast to such practices, the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.
For these reasons, we conclude that the admission in evidence of Mosley’s incriminating statement did not violate the principles of Miranda v. Arizona. Accordingly, the judgment of the Michigan Court of Appeals is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
[T]he process of eroding Miranda rights [] continues with today’s holding that police may renew the questioning of a suspect who has once exercised his right to remain silent, provided the suspect’s right to cut off questioning has been “scrupulously honored.” Today’s distortion of Miranda’s constitutional principles can be viewed only as yet another stop in the erosion and, I suppose, ultimate overruling of Miranda’s enforcement of the privilege against self-incrimination.
The Miranda guidelines were necessitated by the inherently coercive nature of in-custody questioning. As the Court today continues to recognize, under Miranda, the cost of assuring voluntariness by procedural tests, independent of any actual inquiry into voluntariness, is that some voluntary statements will be excluded. Thus the consideration in the task confronting the Court is not whether voluntary statements will be excluded, but whether the procedures approved will be sufficient to assure with reasonable certainty that a confession is not obtained under the influence of the compulsion inherent in interrogation and detention. The procedures approved by the Court today fail to provide that assurance.
We observed in Miranda: “In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege.” And, as that portion of Miranda which the majority finds controlling observed, “the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.” Thus, as to statements which are the product of renewed questioning, Miranda established a virtually irrebuttable presumption of compulsion and that presumption stands strongest where, as in this case, a suspect, having initially determined to remain silent, is subsequently brought to confess his crime. Only by adequate procedural safeguards could the presumption be rebutted.
In formulating its procedural safeguard, the Court skirts the problem of compulsion and thereby fails to join issue with the dictates of Miranda. The language which the Court finds controlling in this case teaches that renewed questioning itself is part of the process which invariably operates to overcome the will of a suspect. That teaching is embodied in the form of a proscription on any further questioning once the suspect has exercised his right to remain silent. Today’s decision uncritically abandons that teaching. The Court assumes, contrary to the controlling language, that “scrupulously honoring” an initial exercise of the right to remain silent preserves the efficaciousness of initial and future warnings despite the fact that the suspect has once been subjected to interrogation and then has been detained for a lengthy period of time.
[The dissent then suggested that once a suspect invokes the right to silence, police should be allowed to reinitiate questioning only if the suspect either has appeared before a judicial officer or has counsel present.]
* * *
Invocation of the Right to Counsel
In comparison with an invocation of the right to silence, a suspect’s invocation of the right to counsel is more powerful. When a suspect says, “I want a lawyer,” that statement restricts police more effectively than something like, “I don’t want to talk to you”—or even something more legalistic like, “I invoke my right to silence.”
Supreme Court of the United States
Robert Edwards v. Arizona
Decided May 18, 1981 – 451 U.S. 477
Justice WHITE delivered the opinion of the Court.
We granted certiorari in this case limited to Q 1 presented in the petition, which in relevant part was “whether the Fifth, Sixth, and Fourteenth Amendments require suppression of a post-arrest confession, which was obtained after Edwards had invoked his right to consult counsel before further interrogation ….”
I
On January 19, 1976, a sworn complaint was filed against Edwards in Arizona state court charging him with robbery, burglary, and first-degree murder. An arrest warrant was issued pursuant to the complaint, and Edwards was arrested at his home later that same day. At the police station, he was informed of his rights as required by Miranda v. Arizona. Petitioner stated that he understood his rights, and was willing to submit to questioning. After being told that another suspect already in custody had implicated him in the crime, Edwards denied involvement and gave a taped statement presenting an alibi defense. He then sought to “make a deal.” The interrogating officer told him that he wanted a statement, but that he did not have the authority to negotiate a deal. The officer provided Edwards with the telephone number of a county attorney. Petitioner made the call, but hung up after a few moments. Edwards then said: “I want an attorney before making a deal.” At that point, questioning ceased and Edwards was taken to county jail.
At 9:15 the next morning, two detectives, colleagues of the officer who had interrogated Edwards the previous night, came to the jail and asked to see Edwards. When the detention officer informed Edwards that the detectives wished to speak with him, he replied that he did not want to talk to anyone. The guard told him that “he had” to talk and then took him to meet with the detectives. The officers identified themselves, stated they wanted to talk to him, and informed him of his Miranda rights. Edwards was willing to talk, but he first wanted to hear the taped statement of the alleged accomplice who had implicated him. After listening to the tape for several minutes, petitioner said that he would make a statement so long as it was not tape-recorded. The detectives informed him that the recording was irrelevant since they could testify in court concerning whatever he said. Edwards replied: “I’ll tell you anything you want to know, but I don’t want it on tape.” He thereupon implicated himself in the crime.
Prior to trial, Edwards moved to suppress his confession on the ground that his Miranda rights had been violated when the officers returned to question him after he had invoked his right to counsel. The trial court initially granted the motion to suppress, but reversed its ruling when presented with a supposedly controlling decision of a higher Arizona court. The court stated without explanation that it found Edwards’ statement to be voluntary. Edwards was tried twice and convicted. Evidence concerning his confession was admitted at both trials.
On appeal, the Arizona Supreme Court held that Edwards had invoked both his right to remain silent and his right to counsel during the interrogation conducted on the night of January 19. The court then went on to determine, however, that Edwards had waived both rights during the January 20 meeting when he voluntarily gave his statement to the detectives after again being informed that he need not answer questions and that he need not answer without the advice of counsel: “The trial court’s finding that the waiver and confession were voluntarily and knowingly made is upheld.”
Because the use of Edwards’ confession against him at his trial violated his rights under the Fifth and Fourteenth Amendments as construed in Miranda v. Arizona, we reverse the judgment of the Arizona Supreme Court.2
II
Here, the critical facts as found by the Arizona Supreme Court are that Edwards asserted his right to counsel and his right to remain silent on January 19, but that the police, without furnishing him counsel, returned the next morning to confront him and as a result of the meeting secured incriminating oral admissions. Contrary to the holdings of the state courts, Edwards insists that having exercised his right on the 19th to have counsel present during interrogation, he did not validly waive that right on the 20th. For the following reasons, we agree.
First, the Arizona Supreme Court applied an erroneous standard for determining waiver where the accused has specifically invoked his right to counsel. It is reasonably clear under our cases that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case “upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”
Here, however sound the conclusion of the state courts as to the voluntariness of Edwards’ admission may be, neither the trial court nor the Arizona Supreme Court undertook to focus on whether Edwards understood his right to counsel and intelligently and knowingly relinquished it. It is thus apparent that the decision below misunderstood the requirement for finding a valid waiver of the right to counsel, once invoked.
Second, although we have held that after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation, the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.
Miranda itself indicated that the assertion of the right to counsel was a significant event and that once exercised by the accused, “the interrogation must cease until an attorney is present.” Our later cases have not abandoned that view. We reconfirm [that] view[] and emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.
In concluding that the fruits of the interrogation initiated by the police on January 20 could not be used against Edwards, we do not hold or imply that Edwards was powerless to countermand his election or that the authorities could in no event use any incriminating statements made by Edwards prior to his having access to counsel. Had Edwards initiated the meeting on January 20, nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at the trial. The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that Edwards invoked and there would be no occasion to determine whether there had been a valid waiver.
But this is not what the facts of this case show. Here, the officers conducting the interrogation on the evening of January 19 ceased interrogation when Edwards requested counsel as he had been advised he had the right to do. The Arizona Supreme Court was of the opinion that this was a sufficient invocation of his Miranda rights, and we are in accord. It is also clear that without making counsel available to Edwards, the police returned to him the next day. This was not at his suggestion or request. Indeed, Edwards informed the detention officer that he did not want to talk to anyone. At the meeting, the detectives told Edwards that they wanted to talk to him and again advised him of his Miranda rights. Edwards stated that he would talk, but what prompted this action does not appear. He listened at his own request to part of the taped statement made by one of his alleged accomplices and then made an incriminating statement, which was used against him at his trial. We think it is clear that Edwards was subjected to custodial interrogation on January 20 and that this occurred at the instance of the authorities. His statement made without having had access to counsel, did not amount to a valid waiver and hence was inadmissible.
Accordingly, the holding of the Arizona Supreme Court that Edwards had waived his right to counsel was infirm, and the judgment of that court is reversed.
Notes, Comments, and Questions
Several years after deciding Arizona v. Edwards, the Court considered whether the rule applied if a suspect invoked his right to counsel when questioned about one crime and police later obtained a waiver of rights for the purpose of interrogating the suspect about a different crime. For example, imagine that police arrest a suspect for larceny, and he invokes his right to counsel. Then, another officer notices the suspect and recognizes him as someone police believe was involved in an unrelated murder. May that officer read the suspect his Miranda warnings and seek permission to question him about the murder?
In Arizona v. Roberson, 486 U.S. 675 (1988), the Court held that Edwards prohibits police from seeking a waiver regardless of the crime they wish to discuss. Roberson concerned a suspect arrested for one burglary who invoked his right to counsel and was later questioned about a different burglary. Quoting an Arizona Supreme Court decision with approval, the Court stated, “The only difference between Edwards and the appellant is that Edwards was questioned about the same offense after a request for counsel while the appellant was reinterrogated about an unrelated offense. We do not believe that this factual distinction holds any legal significance for fifth amendment purposes.”
The Court reiterated “the virtues of a bright-line rule in cases following Edwards as well as Miranda,” and it rejected arguments relying on Michigan v. Mosely, which concerned a waiver obtained after a suspect had invoked his right to silence. The Court distinguished Mosely by reasoning that a “suspect’s decision to cut off questioning, unlike his request for counsel, does not raise the presumption that he is unable to proceed without a lawyer’s advice.” In other words, if a suspect invokes his right to silence, he is asserting his own ability to decide how to act while in custody, in addition to asserting that he does not wish to speak at that time. Because he remains confident of his own judgment, he can change his mind without seeking advice, and police may inquire—after a respectful delay—whether he wishes to change course. A suspect who invokes his right to counsel, by contrast, is announcing his recognition that he needs help. Once he does so, police cannot reasonably ask whether he has somehow gained new power to manage the difficult situation without assistance.
In Minnick v. Mississippi, the Court reaffirmed and extended the rule of Edwards. The question was whether the rule of Edwards applied once a suspect who invoked his right to counsel had met with a lawyer, or if instead the meeting with counsel allowed the police to attempt to reinitiate interrogation.
Students should compare Roberson with McNeil v. Wisconsin (U.S. 1991), which appears in Chapter 29. In McNeil, the Court held that a suspect’s appearance with a lawyer in court for one crime (which causes the Sixth Amendment right to counsel to attach for that crime), does not prevent officers from questioning the suspect about other crimes for which no charges had been filed (and for which Sixth Amendment right had accordingly not yet attached). This will be easier to understand once students have studied other Sixth Amendment cases. But because similar facts yield different results under a Miranda analysis than they do under a Sixth Amendment analysis, we flag the issue now so that students can note the contrast later.
Supreme Court of the United States
Robert S. Minnick v. Mississippi
Decided Dec. 3, 1990 – 498 U.S. 146
Justice KENNEDY delivered the opinion of the Court.
The issue in the case before us is whether Edwards’ protection ceases once the suspect has consulted with an attorney.
Petitioner Robert Minnick and fellow prisoner James Dyess escaped from a county jail in Mississippi and, a day later, broke into a mobile home in search of weapons. In the course of the burglary they were interrupted by the arrival of the trailer’s owner, Ellis Thomas, accompanied by Lamar Lafferty and Lafferty’s infant son. Dyess and Minnick used the stolen weapons to kill Thomas and the senior Lafferty. Minnick’s story is that Dyess murdered one victim and forced Minnick to shoot the other. Before the escapees could get away, two young women arrived at the mobile home. They were held at gunpoint, then bound hand and foot. Dyess and Minnick fled in Thomas’ truck, abandoning the vehicle in New Orleans. The fugitives continued to Mexico, where they fought, and Minnick then proceeded alone to California. Minnick was arrested in Lemon Grove, California, on a Mississippi warrant, some four months after the murders.
The confession at issue here resulted from the last interrogation of Minnick while he was held in the San Diego jail, but we first recount the events which preceded it. Minnick was arrested on Friday, August 22, 1986. Petitioner testified that he was mistreated by local police during and after the arrest. The day following the arrest, Saturday, two Federal Bureau of Investigation (FBI) agents came to the jail to interview him. Petitioner testified that he refused to go to the interview, but was told he would “have to go down or else.” The FBI report indicates that the agents read petitioner his Miranda warnings, and that he acknowledged he understood his rights. He refused to sign a rights waiver form, however, and said he would not answer “very many” questions. Minnick told the agents about the jailbreak and the flight, and described how Dyess threatened and beat him. Early in the interview, he sobbed “[i]t was my life or theirs,” but otherwise he hesitated to tell what happened at the trailer. The agents reminded him he did not have to answer questions without a lawyer present. According to the report, “Minnick stated ‘Come back Monday when I have a lawyer,’ and stated that he would make a more complete statement then with his lawyer present.” The FBI interview ended.
After the FBI interview, an appointed attorney met with petitioner. Petitioner spoke with the lawyer on two or three occasions, though it is not clear from the record whether all of these conferences were in person.
On Monday, August 25, Deputy Sheriff J.C. Denham of Clarke County, Mississippi, came to the San Diego jail to question Minnick. Minnick testified that his jailers again told him he would “have to talk” to Denham and that he “could not refuse.” Denham advised petitioner of his rights, and petitioner again declined to sign a rights waiver form. Petitioner told Denham about the escape and then proceeded to describe the events at the mobile home. According to petitioner, Dyess jumped out of the mobile home and shot the first of the two victims, once in the back with a shotgun and once in the head with a pistol. Dyess then handed the pistol to petitioner and ordered him to shoot the other victim, holding the shotgun on petitioner until he did so. Petitioner also said that when the two girls arrived, he talked Dyess out of raping or otherwise hurting them.
Minnick was tried for murder in Mississippi. He moved to suppress all statements given to the FBI or other police officers, including Denham. The trial court denied the motion with respect to petitioner’s statements to Denham, but suppressed his other statements. Petitioner was convicted on two counts of capital murder and sentenced to death.
On appeal, petitioner argued that the confession to Denham was taken in violation of his rights to counsel under the Fifth and Sixth Amendments. The Mississippi Supreme Court rejected the claims. With respect to the Fifth Amendment aspect of the case, the court found “the Edwards bright-line rule as to initiation” inapplicable. Relying on language in Edwards indicating that the bar on interrogating the accused after a request for counsel applies “‘until counsel has been made available to him,’” the court concluded that “[s]ince counsel was made available to Minnick, his Fifth Amendment right to counsel was satisfied.” The court also rejected the Sixth Amendment claim, finding that petitioner waived his Sixth Amendment right to counsel when he spoke with Denham. We granted certiorari and, without reaching any Sixth Amendment implications in the case, we decide that the Fifth Amendment protection of Edwards is not terminated or suspended by consultation with counsel.
Edwards is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” The rule ensures that any statement made in subsequent interrogation is not the result of coercive pressures. Edwards conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness, and implements the protections of Miranda in practical and straightforward terms.
The merit of the Edwards decision lies in the clarity of its command and the certainty of its application. We have confirmed that the Edwards rule provides “‘clear and unequivocal’ guidelines to the law enforcement profession.” Even before Edwards, we noted that Miranda’s “relatively rigid requirement that interrogation must cease upon the accused’s request for an attorney … has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence even though the confession might be voluntary under traditional Fifth Amendment analysis.” This pre-Edwards explanation applies as well to Edwards and its progeny.
The Mississippi Supreme Court relied on our statement in Edwards that an accused who invokes his right to counsel “is not subject to further interrogation by the authorities until counsel has been made available to him….” We do not interpret this language to mean, as the Mississippi court thought, that the protection of Edwards terminates once counsel has consulted with the suspect. In context, the requirement that counsel be “made available” to the accused refers to more than an opportunity to consult with an attorney outside the interrogation room.
In Edwards, we focused on Miranda’s instruction that when the accused invokes his right to counsel, “the interrogation must cease until an attorney is present,” agreeing with Edwards’ contention that he had not waived his right “to have counsel present during custodial interrogation.” Our emphasis on counsel’s presence at interrogation is not unique to Edwards. It derives from Miranda, where we said that in the cases before us “[t]he presence of counsel … would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the [Fifth Amendment] privilege. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion.” Our cases following Edwards have interpreted the decision to mean that the authorities may not initiate questioning of the accused in counsel’s absence. These descriptions of Edwards’ holding are consistent with our statement that “[p]reserving the integrity of an accused’s choice to communicate with police only through counsel is the essence of Edwards and its progeny.” In our view, a fair reading of Edwards and subsequent cases demonstrates that we have interpreted the rule to bar police-initiated interrogation unless the accused has counsel with him at the time of questioning. Whatever the ambiguities of our earlier cases on this point, we now hold that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.
We consider our ruling to be an appropriate and necessary application of the Edwards rule. A single consultation with an attorney does not remove the suspect from persistent attempts by officials to persuade him to waive his rights, or from the coercive pressures that accompany custody and that may increase as custody is prolonged. The case before us well illustrates the pressures, and abuses, that may be concomitants of custody. Petitioner testified that though he resisted, he was required to submit to both the FBI and the Denham interviews. In the latter instance, the compulsion to submit to interrogation followed petitioner’s unequivocal request during the FBI interview that questioning cease until counsel was present. The case illustrates also that consultation is not always effective in instructing the suspect of his rights. One plausible interpretation of the record is that petitioner thought he could keep his admissions out of evidence by refusing to sign a formal waiver of rights. If the authorities had complied with Minnick’s request to have counsel present during interrogation, the attorney could have corrected Minnick’s misunderstanding, or indeed counseled him that he need not make a statement at all. We decline to remove protection from police-initiated questioning based on isolated consultations with counsel who is absent when the interrogation resumes.
The exception to Edwards here proposed is inconsistent with Edwards’ purpose to protect the suspect’s right to have counsel present at custodial interrogation. It is inconsistent as well with Miranda, where we specifically rejected respondent’s theory that the opportunity to consult with one’s attorney would substantially counteract the compulsion created by custodial interrogation. We noted in Miranda that “[e]ven preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. Thus the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.”
The exception proposed, furthermore, would undermine the advantages flowing from Edwards’ “clear and unequivocal” character. Respondent concedes that even after consultation with counsel, a second request for counsel should reinstate the Edwards protection. We are invited by this formulation to adopt a regime in which Edwards’ protection could pass in and out of existence multiple times prior to arraignment, at which point the same protection might reattach by virtue of our Sixth Amendment jurisprudence. Vagaries of this sort spread confusion through the justice system and lead to a consequent loss of respect for the underlying constitutional principle.
In addition, adopting the rule proposed would leave far from certain the sort of consultation required to displace Edwards. Consultation is not a precise concept, for it may encompass variations from a telephone call to say that the attorney is en route, to a hurried interchange between the attorney and client in a detention facility corridor, to a lengthy in-person conference in which the attorney gives full and adequate advice respecting all matters that might be covered in further interrogations. And even with the necessary scope of consultation settled, the officials in charge of the case would have to confirm the occurrence and, possibly, the extent of consultation to determine whether further interrogation is permissible. The necessary inquiries could interfere with the attorney-client privilege.
Added to these difficulties in definition and application of the proposed rule is our concern over its consequence that the suspect whose counsel is prompt would lose the protection of Edwards, while the one whose counsel is dilatory would not. There is more than irony to this result. There is a strong possibility that it would distort the proper conception of the attorney’s duty to the client and set us on a course at odds with what ought to be effective representation.
Both waiver of rights and admission of guilt are consistent with the affirmation of individual responsibility that is a principle of the criminal justice system. It does not detract from this principle, however, to insist that neither admissions nor waivers are effective unless there are both particular and systemic assurances that the coercive pressures of custody were not the inducing cause. The Edwards rule sets forth a specific standard to fulfill these purposes, and we have declined to confine it in other instances. It would detract from the efficacy of the rule to remove its protections based on consultation with counsel.
Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversation or discussions with the authorities; but that is not the case before us. There can be no doubt that the interrogation in question was initiated by the police; it was a formal interview which petitioner was compelled to attend. Since petitioner made a specific request for counsel before the interview, the police-initiated interrogation was impermissible. Petitioner’s statement to Denham was not admissible at trial.
The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Justice SCALIA, with whom THE CHIEF JUSTICE joins, dissenting.
The Court today establishes an irrebuttable presumption that a criminal suspect, after invoking his Miranda right to counsel, can never validly waive that right during any police-initiated encounter, even after the suspect has been provided multiple Miranda warnings and has actually consulted his attorney. Because I see no justification for applying the Edwards irrebuttable presumption when a criminal suspect has actually consulted with his attorney, I respectfully dissent.
The Court today reverses the trial court’s conclusion. It holds that, because Minnick had asked for counsel during the interview with the FBI agents, he could not—as a matter of law—validly waive the right to have counsel present during the conversation initiated by Denham. That Minnick’s original request to see an attorney had been honored, that Minnick had consulted with his attorney on several occasions, and that the attorney had specifically warned Minnick not to speak to the authorities, are irrelevant. That Minnick was familiar with the criminal justice system in general or Miranda warnings in particular (he had previously been convicted of robbery in Mississippi and assault with a deadly weapon in California) is also beside the point. The confession must be suppressed, not because it was “compelled,” nor even because it was obtained from an individual who could realistically be assumed to be unaware of his rights, but simply because this Court sees fit to prescribe as a “systemic assuranc[e]” that a person in custody who has once asked for counsel cannot thereafter be approached by the police unless counsel is present. Of course the Constitution’s proscription of compelled testimony does not remotely authorize this incursion upon state practices; and even our recent precedents are not a valid excuse.
In this case [] we have not been called upon to reconsider Edwards, but simply to determine whether its irrebuttable presumption should continue after a suspect has actually consulted with his attorney. Whatever justifications might support Edwards are even less convincing in this context.
The existence and the importance of the Miranda-created right “to have counsel present” are unquestioned here. What is questioned is why a State should not be given the opportunity to prove that the right was voluntarily waived by a suspect who, after having been read his Miranda rights twice and having consulted with counsel at least twice, chose to speak to a police officer (and to admit his involvement in two murders) without counsel present.
Edwards did not assert the principle that no waiver of the Miranda right “to have counsel present” is possible. It simply adopted the presumption that no waiver is voluntary in certain circumstances, and the issue before us today is how broadly those circumstances are to be defined. They should not, in my view, extend beyond the circumstances present in Edwards itself—where the suspect in custody asked to consult an attorney and was interrogated before that attorney had ever been provided. In those circumstances, the Edwards rule rests upon an assumption similar to that of Miranda itself: that when a suspect in police custody is first questioned he is likely to be ignorant of his rights and to feel isolated in a hostile environment. This likelihood is thought to justify special protection against unknowing or coerced waiver of rights. After a suspect has seen his request for an attorney honored, however, and has actually spoken with that attorney, the probabilities change. The suspect then knows that he has an advocate on his side, and that the police will permit him to consult that advocate. He almost certainly also has a heightened awareness (above what the Miranda warning itself will provide) of his right to remain silent—since at the earliest opportunity “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.”
Under these circumstances, an irrebuttable presumption that any police-prompted confession is the result of ignorance of rights, or of coercion, has no genuine basis in fact. After the first consultation, therefore, the Edwards exclusionary rule should cease to apply.
One should not underestimate the extent to which the Court’s expansion of Edwards constricts law enforcement. Today’s ruling, that the invocation of a right to counsel permanently prevents a police-initiated waiver, makes it largely impossible for the police to urge a prisoner who has initially declined to confess to change his mind—or indeed, even to ask whether he has changed his mind. Many persons in custody will invoke the Miranda right to counsel during the first interrogation, so that the permanent prohibition will attach at once. Those who do not do so will almost certainly request or obtain counsel at arraignment. We have held that a general request for counsel, after the Sixth Amendment right has attached, also triggers the Edwards prohibition of police-solicited confessions, and I presume that the perpetuality of prohibition announced in today’s opinion applies in that context as well. “Perpetuality” is not too strong a term, since, although the Court rejects one logical moment at which the Edwards presumption might end, it suggests no alternative. In this case Minnick was reapproached by the police three days after he requested counsel, but the result would presumably be the same if it had been three months, or three years, or even three decades. This perpetual irrebuttable presumption will apply, I might add, not merely to interrogations involving the original crime, but to those involving other subjects as well.
Today’s extension of the Edwards prohibition is the latest stage of prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement. This newest tower, according to the Court, is needed to avoid “inconsisten[cy] with [the] purpose” of Edwards’ prophylactic rule, which was needed to protect Miranda’s prophylactic right to have counsel present, which was needed to protect the right against compelled self-incrimination found (at last!) in the Constitution.
It seems obvious to me that, even in Edwards itself but surely in today’s decision, we have gone far beyond any genuine concern about suspects who do not know their right to remain silent, or who have been coerced to abandon it. Both holdings are explicable, in my view, only as an effort to protect suspects against what is regarded as their own folly. The sharp-witted criminal would know better than to confess; why should the dull-witted suffer for his lack of mental endowment? Providing him an attorney at every stage where he might be induced or persuaded (though not coerced) to incriminate himself will even the odds. Apart from the fact that this protective enterprise is beyond our authority under the Fifth Amendment or any other provision of the Constitution, it is unwise. The procedural protections of the Constitution protect the guilty as well as the innocent, but it is not their objective to set the guilty free. That some clever criminals may employ those protections to their advantage is poor reason to allow criminals who have not done so to escape justice.
Thus, even if I were to concede that an honest confession is a foolish mistake, I would welcome rather than reject it; a rule that foolish mistakes do not count would leave most offenders not only unconvicted but undetected. More fundamentally, however, it is wrong, and subtly corrosive of our criminal justice system, to regard an honest confession as a “mistake.” While every person is entitled to stand silent, it is more virtuous for the wrongdoer to admit his offense and accept the punishment he deserves. Not only for society, but for the wrongdoer himself, “admissio[n] of guilt …, if not coerced, [is] inherently desirable,” because it advances the goals of both “justice and rehabilitation.” A confession is rightly regarded by the Sentencing Guidelines as warranting a reduction of sentence, because it “demonstrates a recognition and affirmative acceptance of personal responsibility for … criminal conduct,” which is the beginning of reform. We should, then, rejoice at an honest confession, rather than pity the “poor fool” who has made it; and we should regret the attempted retraction of that good act, rather than seek to facilitate and encourage it. To design our laws on premises contrary to these is to abandon belief in either personal responsibility or the moral claim of just government to obedience. Today’s decision is misguided.
Notes, Comments, and Questions
In Maryland v. Shatzer, the Court considered whether the rule of Arizona v. Edwards—which prohibits police from attempting to question a suspect absent counsel once that suspect has invoked the right to counsel—applies after a “break in custody.” The facts of the case made it an odd vehicle for the Court to reach this question. Shatzer was in prison during his interrogation, meaning he was “in custody” as that term is normally used, and he was never at liberty (out of custody) during any of the events relevant to the Miranda issue in the case. Students should read the case carefully to see how the Court found a “break in custody.”
Students should realize, too, that the rule of Shatzer applies in the following more common scenario: (1) A suspect is taken into custody and read the Miranda warnings, (2) the suspect invokes his right to counsel, and interrogation stops, (3) the suspect is released, perhaps after a bail hearing, and (4) later, perhaps after several weeks, the suspect is arrested and taken back into custody. The question before the Court was whether the invocation during the suspect’s earlier custodial interrogation prohibits police efforts to question the suspect after the new arrest.
What are the advantages of the bright-line rule advocated by Justice Kennedy in Minnick? Why do you think the Court treats the suspect’s invocation of her right to counsel differently than her invocation of her right to remain silent?
Supreme Court of the United States
Maryland v. Michael Blaine Shatzer, Sr.
Decided Feb. 24, 2010 – 559 U.S. 98
Justice SCALIA delivered the opinion of the Court.
We consider whether a break in custody ends the presumption of involuntariness established in Edwards v. Arizona.
I
In August 2003, a social worker assigned to the Child Advocacy Center in the Criminal Investigation Division of the Hagerstown Police Department referred to the department allegations that respondent Michael Shatzer, Sr., had sexually abused his 3-year-old son. At that time, Shatzer was incarcerated at the Maryland Correctional Institution–Hagerstown, serving a sentence for an unrelated child-sexual-abuse offense. Detective Shane Blankenship was assigned to the investigation and interviewed Shatzer at the correctional institution on August 7, 2003. Before asking any questions, Blankenship reviewed Shatzer’s Miranda rights with him, and obtained a written waiver of those rights. When Blankenship explained that he was there to question Shatzer about sexually abusing his son, Shatzer expressed confusion—he had thought Blankenship was an attorney there to discuss the prior crime for which he was incarcerated. Blankenship clarified the purpose of his visit, and Shatzer declined to speak without an attorney. Accordingly, Blankenship ended the interview, and Shatzer was released back into the general prison population. Shortly thereafter, Blankenship closed the investigation.
Two years and six months later, the same social worker referred more specific allegations to the department about the same incident involving Shatzer. Detective Paul Hoover, from the same division, was assigned to the investigation. He and the social worker interviewed the victim, then eight years old, who described the incident in more detail. With this new information in hand, on March 2, 2006, they went to the Roxbury Correctional Institute, to which Shatzer had since been transferred, and interviewed Shatzer in a maintenance room outfitted with a desk and three chairs. Hoover explained that he wanted to ask Shatzer about the alleged incident involving Shatzer’s son. Shatzer was surprised because he thought that the investigation had been closed, but Hoover explained they had opened a new file. Hoover then read Shatzer his Miranda rights and obtained a written waiver on a standard department form.
Hoover interrogated Shatzer about the incident for approximately 30 minutes. Shatzer denied ordering his son to perform fellatio on him, but admitted to masturbating in front of his son from a distance of less than three feet. Before the interview ended, Shatzer agreed to Hoover’s request that he submit to a polygraph examination. At no point during the interrogation did Shatzer request to speak with an attorney or refer to his prior refusal to answer questions without one.
Five days later, on March 7, 2006, Hoover and another detective met with Shatzer at the correctional facility to administer the polygraph examination. After reading Shatzer his Miranda rights and obtaining a written waiver, the other detective administered the test and concluded that Shatzer had failed. When the detectives then questioned Shatzer, he became upset, started to cry, and incriminated himself by saying, “‘I didn’t force him. I didn’t force him.’” After making this inculpatory statement, Shatzer requested an attorney, and Hoover promptly ended the interrogation.
The State’s Attorney for Washington County charged Shatzer with second-degree sexual offense, sexual child abuse, second-degree assault, and contributing to conditions rendering a child in need of assistance. Shatzer moved to suppress his March 2006 statements pursuant to Edwards. The trial court held a suppression hearing and later denied Shatzer’s motion. The Edwards protections did not apply, it reasoned, because Shatzer had experienced a break in custody for Miranda purposes between the 2003 and 2006 interrogations. Shatzer pleaded not guilty, waived his right to a jury trial, and proceeded to a bench trial based on an agreed statement of facts. In accordance with the agreement, the State described the interview with the victim and Shatzer’s 2006 statements to the detectives. Based on the proffered testimony of the victim and the “admission of the defendant as to the act of masturbation,” the trial court found Shatzer guilty of sexual child abuse of his son.
Over the dissent of two judges, the Court of Appeals of Maryland reversed and remanded. The court held that “the passage of time alone is insufficient to [end] the protections afforded by Edwards,” and that, assuming, arguendo, a break-in-custody exception to Edwards existed, Shatzer’s release back into the general prison population between interrogations did not constitute a break in custody. We granted certiorari.
II
The rationale of Edwards is that once a suspect indicates that “he is not capable of undergoing [custodial] questioning without advice of counsel,” “any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the ‘inherently compelling pressures’ and not the purely voluntary choice of the suspect.” Under this rule, a voluntary Miranda waiver is sufficient at the time of an initial attempted interrogation to protect a suspect’s right to have counsel present, but it is not sufficient at the time of subsequent attempts if the suspect initially requested the presence of counsel. The implicit assumption, of course, is that the subsequent requests for interrogation pose a significantly greater risk of coercion. That increased risk results not only from the police’s persistence in trying to get the suspect to talk, but also from the continued pressure that begins when the individual is taken into custody as a suspect and sought to be interrogated—pressure likely to “increase as custody is prolonged.” The Edwards presumption of involuntariness ensures that police will not take advantage of the mounting coercive pressures of “prolonged police custody” by repeatedly attempting to question a suspect who previously requested counsel until the suspect is “badgered into submission.”
We have frequently emphasized that the Edwards rule is not a constitutional mandate, but judicially prescribed prophylaxis. Because Edwards is “our rule, not a constitutional command,” “it is our obligation to justify its expansion.”
A judicially crafted rule is “justified only by reference to its prophylactic purpose” and applies only where its benefits outweigh its costs. We begin with the benefits. Edwards’ presumption of involuntariness has the incidental effect of “conserv[ing] judicial resources which would otherwise be expended in making difficult determinations of voluntariness.” Its fundamental purpose, however, is to “[p]reserv[e] the integrity of an accused’s choice to communicate with police only through counsel” by “prevent[ing] police from badgering a defendant into waiving his previously asserted Miranda rights.” Thus, the benefits of the rule are measured by the number of coerced confessions it suppresses that otherwise would have been admitted.
It is easy to believe that a suspect may be coerced or badgered into abandoning his earlier refusal to be questioned without counsel in the paradigm Edwards case. That is a case in which the suspect has been arrested for a particular crime and is held in uninterrupted pretrial custody while that crime is being actively investigated. After the initial interrogation, and up to and including the second one, he remains cut off from his normal life and companions, “thrust into” and isolated in an “unfamiliar,” “police-dominated atmosphere” where his captors “appear to control [his] fate.” That was the situation confronted by the suspects in Edwards, Roberson, and Minnick, the three cases in which we have held the Edwards rule applicable. None of these suspects regained a sense of control or normalcy after they were initially taken into custody for the crime under investigation.
When, unlike what happened in these three cases, a suspect has been released from his pretrial custody and has returned to his normal life for some time before the later attempted interrogation, there is little reason to think that his change of heart regarding interrogation without counsel has been coerced. He has no longer been isolated. He has likely been able to seek advice from an attorney, family members, and friends. And he knows from his earlier experience that he need only demand counsel to bring the interrogation to a halt; and that investigative custody does not last indefinitely. In these circumstances, it is farfetched to think that a police officer’s asking the suspect whether he would like to waive his Miranda rights will any more “wear down the accused” than did the first such request at the original attempted interrogation—which is of course not deemed coercive. His change of heart is less likely attributable to “badgering” than it is to the fact that further deliberation in familiar surroundings has caused him to believe (rightly or wrongly) that cooperating with the investigation is in his interest. Uncritical extension of Edwards to this situation would not significantly increase the number of genuinely coerced confessions excluded. The “justification for a conclusive presumption disappears when application of the presumption will not reach the correct result most of the time.”
At the same time that extending the Edwards rule yields diminished benefits, extending the rule also increases its costs: the in-fact voluntary confessions it excludes from trial, and the voluntary confessions it deters law enforcement officers from even trying to obtain. Voluntary confessions are not merely “a proper element in law enforcement,” they are an “unmitigated good” “‘essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.’”
The only logical endpoint of Edwards disability is termination of Miranda custody and any of its lingering effects. Without that limitation—and barring some purely arbitrary time limit—every Edwards prohibition of custodial interrogation of a particular suspect would be eternal. The prohibition applies, of course, when the subsequent interrogation pertains to a different crime, when it is conducted by a different law enforcement authority, and even when the suspect has met with an attorney after the first interrogation. And it not only prevents questioning ex ante; it would render invalid, ex post, confessions invited and obtained from suspects who (unbeknownst to the interrogators) have acquired Edwards immunity previously in connection with any offense in any jurisdiction. In a country that harbors a large number of repeat offenders, this consequence is disastrous.
We conclude that such an extension of Edwards is not justified; we have opened its “‘protective umbrella’” far enough. The protections offered by Miranda, which we have deemed sufficient to ensure that the police respect the suspect’s desire to have an attorney present the first time police interrogate him, adequately ensure that result when a suspect who initially requested counsel is reinterrogated after a break in custody that is of sufficient duration to dissipate its coercive effects.
If Shatzer’s return to the general prison population qualified as a break in custody (a question we address in Part III, infra), there is no doubt that it lasted long enough (two years) to meet that durational requirement. But what about a break that has lasted only one year? Or only one week? It is impractical to leave the answer to that question for clarification in future case-by-case adjudication; law enforcement officers need to know, with certainty and beforehand, when renewed interrogation is lawful. And while it is certainly unusual for this Court to set forth precise time limits governing police action, it is not unheard of.
[T]his is a case in which the requisite police action has not been prescribed by statute but has been established by opinion of this Court. We think it appropriate to specify a period of time to avoid the consequence that continuation of the Edwards presumption “will not reach the correct result most of the time.” It seems to us that period is 14 days. That provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.
The 14-day limitation meets Shatzer’s concern that a break-in-custody rule lends itself to police abuse. He envisions that once a suspect invokes his Miranda right to counsel, the police will release the suspect briefly (to end the Edwards presumption) and then promptly bring him back into custody for reinterrogation. But once the suspect has been out of custody long enough (14 days) to eliminate its coercive effect, there will be nothing to gain by such gamesmanship—nothing, that is, except the entirely appropriate gain of being able to interrogate a suspect who has made a valid waiver of his Miranda rights.
Shatzer argues that ending the Edwards protections at a break in custody will undermine Edwards purpose to conserve judicial resources. To be sure, we have said that “[t]he merit of the Edwards decision lies in the clarity of its command and the certainty of its application.” But clarity and certainty are not goals in themselves. They are valuable only when they reasonably further the achievement of some substantive end—here, the exclusion of compelled confessions. Confessions obtained after a 2-week break in custody and a waiver of Miranda rights are most unlikely to be compelled, and hence are unreasonably excluded. In any case, a break-in-custody exception will dim only marginally, if at all, the bright-line nature of Edwards. In every case involving Edwards, the courts must determine whether the suspect was in custody when he requested counsel and when he later made the statements he seeks to suppress. Now, in cases where there is an alleged break in custody, they simply have to repeat the inquiry for the time between the initial invocation and reinterrogation. In most cases that determination will be easy. And when it is determined that the defendant pleading Edwards has been out of custody for two weeks before the contested interrogation, the court is spared the fact-intensive inquiry into whether he ever, anywhere, asserted his Miranda right to counsel.
III
We have never decided whether incarceration constitutes custody for Miranda purposes, and have indeed explicitly declined to address the issue. Whether it does depends upon whether it exerts the coercive pressure that Miranda was designed to guard against—the “danger of coercion [that] results from the interaction of custody and official interrogation.” To determine whether a suspect was in Miranda custody we have asked whether “there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” This test, no doubt, is satisfied by all forms of incarceration. Our cases make clear, however, that the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody. We have declined to accord it “talismanic power,” because Miranda is to be enforced “only in those types of situations in which the concerns that powered the decision are implicated.” Thus, the temporary and relatively nonthreatening detention involved in a traffic stop or Terry stop does not constitute Miranda custody.
Here, we are addressing the interim period during which a suspect was not interrogated, but was subject to a baseline set of restraints imposed pursuant to a prior conviction. Without minimizing the harsh realities of incarceration, we think lawful imprisonment imposed upon conviction of a crime does not create the coercive pressures identified in Miranda.
Interrogated suspects who have previously been convicted of crime live in prison. When they are released back into the general prison population, they return to their accustomed surroundings and daily routine—they regain the degree of control they had over their lives prior to the interrogation. Sentenced prisoners, in contrast to the Miranda paradigm, are not isolated with their accusers. They live among other inmates, guards, and workers, and often can receive visitors and communicate with people on the outside by mail or telephone.
IV
Because Shatzer experienced a break in Miranda custody lasting more than two weeks between the first and second attempts at interrogation, Edwards does not mandate suppression of his March 2006 statements. Accordingly, we reverse the judgment of the Court of Appeals of Maryland, and remand the case for further proceedings not inconsistent with this opinion.
Justice STEVENS, concurring in the judgment.
While I agree that the presumption from Edwards v. Arizona is not “eternal” and does not mandate suppression of Shatzer’s statement made after a 2 ½-year break in custody, I do not agree with the Court’s newly announced rule: that Edwards always ceases to apply when there is a 14-day break in custody.
The most troubling aspect of the Court’s time-based rule is that it disregards the compulsion caused by a second (or third, or fourth) interrogation of an indigent suspect who was told that if he requests a lawyer, one will be provided for him. When police tell an indigent suspect that he has the right to an attorney, that he is not required to speak without an attorney present, and that an attorney will be provided to him at no cost before questioning, the police have made a significant promise. If they cease questioning and then reinterrogate the suspect 14 days later without providing him with a lawyer, the suspect is likely to feel that the police lied to him and that he really does not have any right to a lawyer.
When officers informed Shatzer of his rights during the first interrogation, they presumably informed him that if he requested an attorney, one would be appointed for him before he was asked any further questions. But if an indigent suspect requests a lawyer, “any further interrogation” (even 14 days later) “without counsel having been provided will surely exacerbate whatever compulsion to speak the suspect may be feeling.” When police have not honored an earlier commitment to provide a detainee with a lawyer, the detainee likely will “understan[d] his (expressed) wishes to have been ignored” and “may well see further objection as futile and confession (true or not) as the only way to end his interrogation.” Simply giving a “fresh se[t] of Miranda warnings” will not “‘reassure’ a suspect who has been denied the counsel he has clearly requested that his rights have remained untrammeled.”
The Court … speculates that if a suspect is reinterrogated and eventually talks, it must be that “further deliberation in familiar surroundings has caused him to believe (rightly or wrongly) that cooperating with the investigation is in his interest.” But it is not apparent why that is the case. The answer, we are told, is that once a suspect has been out of Miranda custody for 14 days, “[h]e has likely been able to seek advice from an attorney, family members, and friends.” This speculation, however, is overconfident and only questionably relevant. As a factual matter, we do not know whether the defendant has been able to seek advice: First of all, suspects are told that if they cannot afford a lawyer, one will be provided for them. Yet under the majority’s rule, an indigent suspect who took the police at their word when he asked for a lawyer will nonetheless be assumed to have “been able to seek advice from an attorney.” Second, even suspects who are not indigent cannot necessarily access legal advice (or social advice as the Court presumes) within 14 days. Third, suspects may not realize that they need to seek advice from an attorney. Unless police warn suspects that the interrogation will resume in 14 days, why contact a lawyer? When a suspect is let go, he may assume that the police were satisfied. In any event, it is not apparent why interim advice matters. In Minnick v. Mississippi we held that it is not sufficient that a detainee happened to speak at some point with a lawyer. If the actual interim advice of an attorney is not sufficient, the hypothetical, interim advice of “an attorney, family members, and friends” is not enough.
Because, at the very least, we do not know whether Shatzer could obtain a lawyer, and thus would have felt that police had lied about providing one, I cannot join the Court’s opinion. I concur in today’s judgment, however, on another ground: Even if Shatzer could not consult a lawyer and the police never provided him one, the 2 ½-year break in custody is a basis for treating the second interrogation as no more coercive than the first. Neither a break in custody nor the passage of time has an inherent, curative power. But certain things change over time. An indigent suspect who took police at their word that they would provide an attorney probably will feel that he has “been denied the counsel he has clearly requested” when police begin to question him, without a lawyer, only 14 days later. But, when a suspect has been left alone for a significant period of time, he is not as likely to draw such conclusions when the police interrogate him again. It is concededly “impossible to determine with precision” where to draw such a line. In the case before us, however, the suspect was returned to the general prison population for two years. I am convinced that this period of time is sufficient. I therefore concur in the judgment.
Notes, Comments, and Questions
The Court holds that the cessation of custody (plus 14 days) ends the lawyer-invocation rule of Edwards. Where does the 14 days come from? Why should a suspect who asked for his lawyer 13 days ago be treated differently than a suspect who asked for his lawyer 15 days ago? The Court articulates a 14-day rule that is unrelated to the actual time lapse in the facts of the case (which was far longer). Why might this be problematic? Why should or shouldn’t the Court wait for facts that are a closer call before articulating a bright-line rule?
Under Edwards, a suspect remains free to initiate conversations with police even after invoking his right to counsel. The rule of Edwards restricts only the behavior of police, not of suspects. As the Court wrote, a suspect who invokes “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police” (emphasis added). Because of the importance of who initiated a conversation, lawyers sometimes argue about the details of who exactly said what when. A suspect who asks an officer what time it is or requests permission to visit the bathroom has not opened the door for an attempt by police to obtain a Miranda waiver. But if a suspect asks about his case or starts talking about what happened, he may well open the door for police seek a waiver. Further, anything the suspect simply blurts out without being interrogated is admissible because it is not the product of “interrogation.”
In our next chapter, we consider exceptions to the Miranda rule. These are situations in which the Court has held that even if police do not read a suspect the Miranda warnings, a prosecutor may nonetheless use the results of custodial interrogation against a criminal defendant. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/03%3A_Interrogations/3.06%3A_Chapter_27_-_The_Miranda_Rule-_Effect_of_Invocations_of_Rights.txt |
The text of the Sixth Amendment says nothing about interrogations. But it does have at least one useful hint about its applicability—the phrase “in all criminal prosecutions.” If there is no “prosecution,” there is no Sixth Amendment. The Court has clarified that “prosecution” is not limited to trials, and it has also stated that mere arrest isn’t enough. There must be some sort of formal proceeding.
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” The Court has held that once a defendant’s right to counsel has “attached”—a concept we will examine later—additional rules restrict interrogations. These rules differ from the Miranda Rule in important ways. For example, the Assistance of Counsel Clause applies regardless of whether a suspect is in custody. Further, the restrictions imposed under the Clause apply to undercover agents as well as to interrogators whom suspects know to be police officers.
The cases beginning with Massiah v. United States compose the third and final interrogation doctrine included in this book. Students should recall that the Due Process Clauses, the Miranda Rule, and the Massiah doctrine impose overlapping commands that police must obey during their investigations of crime.
Supreme Court of the United States
Winston Massiah v. United States
Decided May 18, 1964 – 377 U.S. 201
Mr. Justice STEWART delivered the opinion of the Court.
The petitioner was indicted for violating the federal narcotics laws. He retained a lawyer, pleaded not guilty, and was released on bail. While he was free on bail a federal agent succeeded by surreptitious means in listening to incriminating statements made by him. Evidence of these statements was introduced against the petitioner at his trial over his objection. He was convicted, and the Court of Appeals affirmed. We granted certiorari to consider whether, under the circumstances here presented, the prosecution’s use at the trial of evidence of the petitioner’s own incriminating statements deprived him of any right secured to him under the Federal Constitution.
The petitioner, a merchant seaman, was in 1958 a member of the crew of the S.S. Santa Maria. In April of that year federal customs officials in New York received information that he was going to transport a quantity of narcotics aboard that ship from South America to the United States. As a result of this and other information, the agents searched the Santa Maria upon its arrival in New York and found in the afterpeak of the vessel five packages containing about three and a half pounds of cocaine. They also learned of circumstances, not here relevant, tending to connect the petitioner with the cocaine. He was arrested, promptly arraigned, and subsequently indicted for possession of narcotics aboard a United States vessel. In July a superseding indictment was returned, charging the petitioner and a man named Colson with the same substantive offense, and in separate counts charging the petitioner, Colson, and others with having conspired to possess narcotics aboard a United States vessel, and to import, conceal, and facilitate the sale of narcotics. The petitioner, who had retained a lawyer, pleaded not guilty and was released on bail, along with Colson.
A few days later, and quite without the petitioner’s knowledge, Colson decided to cooperate with the government agents in their continuing investigation of the narcotics activities in which the petitioner, Colson, and others had allegedly been engaged. Colson permitted an agent named Murphy to install a Schmidt radio transmitter under the front seat of Colson’s automobile, by means of which Murphy, equipped with an appropriate receiving device, could overhear from some distance away conversations carried on in Colson’s car.
On the evening of November 19, 1959, Colson and the petitioner held a lengthy conversation while sitting in Colson’s automobile, parked on a New York street. By prearrangement with Colson, and totally unbeknown to the petitioner, the agent Murphy sat in a car parked out of sight down the street and listened over the radio to the entire conversation. The petitioner made several incriminating statements during the course of this conversation. At the petitioner’s trial these incriminating statements were brought before the jury through Murphy’s testimony, despite the insistent objection of defense counsel. The jury convicted the petitioner of several related narcotics offenses, and the convictions were affirmed by the Court of Appeals.
The petitioner argues that it was an error of constitutional dimensions to permit the agent Murphy at the trial to testify to the petitioner’s incriminating statements which Murphy had overheard under the circumstances disclosed by this record. This argument is based upon two distinct and independent grounds. First, we are told that Murphy’s use of the radio equipment violated the petitioner’s rights under the Fourth Amendment, and, consequently, that all evidence which Murphy thereby obtained was, under the rule of Weeks v. United States, 232 U.S. 383 (1914), inadmissible against the petitioner at the trial. Secondly, it is said that the petitioner’s Fifth and Sixth Amendment rights were violated by the use in evidence against him of incriminating statements which government agents had deliberately elicited from him after he had been indicted and in the absence of his retained counsel. Because of the way we dispose of the case, we do not reach the Fourth Amendment issue.
It was said [in the Spano v. New York concurrence] that a Constitution which guarantees a defendant the aid of counsel at such a trial could surely vouchsafe no less to an indicted defendant under interrogation by the police in a completely extrajudicial proceeding. Anything less, it was said, might deny a defendant “effective representation by counsel at the only stage when legal aid and advice would help him.” Ever since this Court’s decision in the Spano case, the New York courts have unequivocally followed this constitutional rule. “Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.”
This view no more than reflects a constitutional principle [] that “…during perhaps the most critical period of the proceedings … that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation [are] vitally important, the defendants … [are] as much entitled to such aid [of counsel] during that period as at the trial itself.” And since the Spano decision the same basic constitutional principle has been broadly reaffirmed by this Court.
Here we deal not with a state court conviction, but with a federal case, where the specific guarantee of the Sixth Amendment directly applies. We hold that the petitioner was denied the basic protections of that guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel. It is true that in the Spano case the defendant was interrogated in a police station, while here the damaging testimony was elicited from the defendant without his knowledge while he was free on bail. But, as Judge Hays pointed out in his dissent in the Court of Appeals, “if such a rule is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse. In this case, Massiah was more seriously imposed upon … because he did not even know that he was under interrogation by a government agent.”
The Solicitor General, in his brief and oral argument, has strenuously contended that the federal law enforcement agents had the right, if not indeed the duty, to continue their investigation of the petitioner and his alleged criminal associates even though the petitioner had been indicted. He points out that the Government was continuing its investigation in order to uncover not only the source of narcotics found on the S.S. Santa Maria, but also their intended buyer. He says that the quantity of narcotics involved was such as to suggest that the petitioner was part of a large and well-organized ring, and indeed that the continuing investigation confirmed this suspicion, since it resulted in criminal charges against many defendants. Under these circumstances the Solicitor General concludes that the Government agents were completely “justified in making use of Colson’s cooperation by having Colson continue his normal associations and by surveilling them.”
We may accept and, at least for present purposes, completely approve all that this argument implies, Fourth Amendment problems to one side. We do not question that in this case, as in many cases, it was entirely proper to continue an investigation of the suspected criminal activities of the defendant and his alleged confederates, even though the defendant had already been indicted. All that we hold is that the defendant’s own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial.
Mr. Justice WHITE, with whom Mr. Justice CLARK and Mr. Justice HARLAN join, dissenting.
The current incidence of serious violations of the law represents not only an appalling waste of the potentially happy and useful lives of those who engage in such conduct but also an overhanging, dangerous threat to those unidentified and innocent people who will be the victims of crime today and tomorrow. This is a festering problem for which no adequate cures have yet been devised. At the very least there is much room for discontent with remedial measures so far undertaken. And admittedly there remains much to be settled concerning the disposition to be made of those who violate the law.
But dissatisfaction with preventive programs aimed at eliminating crime and profound dispute about whether we should punish, deter, rehabilitate or cure cannot excuse concealing one of our most menacing problems until the millennium has arrived. In my view, a civilized society must maintain its capacity to discover transgressions of the law and to identify those who flout it. This much is necessary even to know the scope of the problem, much less to formulate intelligent counter-measures. It will just not do to sweep these disagreeable matters under the rug or to pretend they are not there at all.
It is therefore a rather portentous occasion when a constitutional rule is established barring the use of evidence which is relevant, reliable and highly probative of the issue which the trial court has before it—whether the accused committed the act with which he is charged. Without the evidence, the quest for truth may be seriously impeded and in many cases the trial court, although aware of proof showing defendant’s guilt, must nevertheless release him because the crucial evidence is deemed inadmissible. This result is entirely justified in some circumstances because exclusion serves other policies of overriding importance, as where evidence seized in an illegal search is excluded, not because of the quality of the proof, but to secure meaningful enforcement of the Fourth Amendment. But this only emphasizes that the soundest of reasons is necessary to warrant the exclusion of evidence otherwise admissible and the creation of another area of privileged testimony. With all due deference, I am not at all convinced that the additional barriers to the pursuit of truth which the Court today erects rest on anything like the solid foundations which decisions of this gravity should require.
The importance of the matter should not be underestimated, for today’s rule promises to have wide application well beyond the facts of this case. The reason given for the result here—the admissions were obtained in the absence of counsel—would seem equally pertinent to statements obtained at any time after the right to counsel attaches, whether there has been an indictment or not; to admissions made prior to arraignment, at least where the defendant has counsel or asks for it; to the fruits of admissions improperly obtained under the new rule; to criminal proceedings in state courts; and to defendants long since convicted upon evidence including such admissions. The new rule will immediately do service in a great many cases.
Whatever the content or scope of the rule may prove to be, I am unable to see how this case presents an unconstitutional interference with Massiah’s right to counsel. Massiah was not prevented from consulting with counsel as often as he wished. No meetings with counsel were disturbed or spied upon. Preparation for trial was in no way obstructed. It is only a sterile syllogism—an unsound one, besides—to say that because Massiah had a right to counsel’s aid before and during the trial, his out-of-court conversations and admissions must be excluded if obtained without counsel’s consent or presence. The right to counsel has never meant as much before, and its extension in this case requires some further explanation, so far unarticulated by the Court.
Since the new rule would exclude all admissions made to the police, no matter how voluntary and reliable, the requirement of counsel’s presence or approval would seem to rest upon the probability that counsel would foreclose any admissions at all. This is nothing more than a thinly disguised constitutional policy of minimizing or entirely prohibiting the use in evidence of voluntary out-of-court admissions and confessions made by the accused. Carried as far as blind logic may compel some to go, the notion that statements from the mouth of the defendant should not be used in evidence would have a severe and unfortunate impact upon the great bulk of criminal cases.
Viewed in this light, the Court’s newly fashioned exclusionary principle goes far beyond the constitutional privilege against self-incrimination, which neither requires nor suggests the barring of voluntary pretrial admissions. The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against himself …” The defendant may thus not be compelled to testify at his trial, but he may if he wishes. Likewise he may not be compelled or coerced into saying anything before trial; but until today he could if he wished to, and if he did, it could be used against him. Whether as a matter of self-incrimination or of due process, the proscription is against compulsion—coerced incrimination. Under the prior law, announced in countless cases in this Court, the defendant’s pretrial statements were admissible evidence if voluntarily made; inadmissible if not the product of his free will. Hardly any constitutional area has been more carefully patrolled by this Court, and until now the Court has expressly rejected the argument that admissions are to be deemed involuntary if made outside the presence of counsel.
The Court presents no facts, no objective evidence, no reasons to warrant scrapping the voluntary-involuntary test for admissibility in this area. Without such evidence I would retain it in its present form.
Applying the new exclusionary rule is peculiarly inappropriate in this case. At the time of the conversation in question, petitioner was not in custody but free on bail. He was not questioned in what anyone could call an atmosphere of official coercion. What he said was said to his partner in crime who had also been indicted. There was no suggestion or any possibility of coercion. What petitioner did not know was that Colson had decided to report the conversation to the police. Had there been no prior arrangements between Colson and the police, had Colson simply gone to the police after the conversation had occurred, his testimony relating Massiah’s statements would be readily admissible at the trial, as would a recording which he might have made of the conversation. In such event, it would simply be said that Massiah risked talking to a friend who decided to disclose what he knew of Massiah’s criminal activities. But, if, as occurred here, Colson had been cooperating with the police prior to his meeting with Massiah, both his evidence and the recorded conversation are somehow transformed into inadmissible evidence despite the fact that the hazard to Massiah remains precisely the same—the defection of a confederate in crime.
Reporting criminal behavior is expected or even demanded of the ordinary citizen. Friends may be subpoenaed to testify about friends, relatives about relatives and partners about partners. I therefore question the soundness of insulating Massiah from the apostasy of his partner in crime and of furnishing constitutional sanction for the strict secrecy and discipline of criminal organizations. Neither the ordinary citizen nor the confessed criminal should be discouraged from reporting what he knows to the authorities and from lending his aid to secure evidence of crime. Certainly after this case the Colsons will be few and far between; and the Massiahs can breathe much more easily, secure in the knowledge that the Constitution furnishes an important measure of protection against faithless compatriots and guarantees sporting treatment for sporting peddlers of narcotics.
Meanwhile, of course, the public will again be the loser and law enforcement will be presented with another serious dilemma. The general issue lurking in the background of the Court’s opinion is the legitimacy of penetrating or obtaining confederates in criminal organizations. For the law enforcement agency, the answer for the time being can only be in the form of a prediction about the future application of today’s new constitutional doctrine. More narrowly, and posed by the precise situation involved here, the question is this: when the police have arrested and released on bail one member of a criminal ring and another member, a confederate, is cooperating with the police, can the confederate be allowed to continue his association with the ring or must he somehow be withdrawn to avoid challenge to trial evidence on the ground that it was acquired after rather than before the arrest, after rather than before the indictment?
Undoubtedly, the evidence excluded in this case would not have been available but for the conduct of Colson in cooperation with Agent Murphy, but is it this kind of conduct which should be forbidden to those charged with law enforcement? It is one thing to establish safeguards against procedures fraught with the potentiality of coercion and to outlaw “easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection.” But here there was no substitution of brutality for brains, no inherent danger of police coercion justifying the prophylactic effect of another exclusionary rule.
Notes, Comments, and Questions
Because under Massiah police cannot use undercover agents to question a suspect whose right to counsel has “attached,” two suspects in the same jail can have different rules apply to them. If one has been arrested but not yet indicted or brought before a judge, chances are that Miranda applies to her and Massiah does not. In that case, because undercover questioning is not “interrogation” under Miranda, a secret informant could freely question the suspect, with only the Due Process Clauses regulating the tactics. A cellmate who had been indicted—or for whom adversary proceedings had otherwise commenced—would be protected by Massiah doctrine, which applies regardless of whether a suspect is in custody.
In Brewer v. Williams, the Court was forced to decide whether to apply the Massiah doctrine in the case of a murder of a ten-year-old child. Perhaps because the straightforward application of the rule would lead to such an unappealing outcome—the state’s inability to punish a killer whose guilt was seemingly in little doubt—the case caused sharp disagreements among the Justices.
Supreme Court of the United States
Lou V. Brewer v. Robert Anthony Williams
Decided March 23, 1977 – 430 U.S. 387
Mr. Justice STEWART delivered the opinion of the Court.
An Iowa trial jury found the respondent, Robert Williams, guilty of murder. The judgment of conviction was affirmed in the Iowa Supreme Court by a closely divided vote. In a subsequent habeas corpus proceeding a Federal District Court ruled that under the United States Constitution Williams is entitled to a new trial, and a divided Court of Appeals for the Eighth Circuit agreed. The question before us is whether the District Court and the Court of Appeals were wrong.
I
On the afternoon of December 24, 1968, a 10-year-old girl named Pamela Powers went with her family to the YMCA in Des Moines, Iowa, to watch a wrestling tournament in which her brother was participating. When she failed to return from a trip to the washroom, a search for her began. The search was unsuccessful.
Robert Williams, who had recently escaped from a mental hospital, was a resident of the YMCA. Soon after the girl’s disappearance Williams was seen in the YMCA lobby carrying some clothing and a large bundle wrapped in a blanket. He obtained help from a 14-year-old boy in opening the street door of the YMCA and the door to his automobile parked outside. When Williams placed the bundle in the front seat of his car the boy “saw two legs in it and they were skinny and white.” Before anyone could see what was in the bundle Williams drove away. His abandoned car was found the following day in Davenport, Iowa, roughly 160 miles east of Des Moines. A warrant was then issued in Des Moines for his arrest on a charge of abduction.
On the morning of December 26, a Des Moines lawyer named Henry McKnight went to the Des Moines police station and informed the officers present that he had just received a long-distance call from Williams, and that he had advised Williams to turn himself in to the Davenport police. Williams did surrender that morning to the police in Davenport, and they booked him on the charge specified in the arrest warrant and gave him the warnings required by Miranda v. Arizona. The Davenport police then telephoned their counterparts in Des Moines to inform them that Williams had surrendered. McKnight, the lawyer, was still at the Des Moines police headquarters, and Williams conversed with McKnight on the telephone. In the presence of the Des Moines chief of police and a police detective named Leaming, McKnight advised Williams that Des Moines police officers would be driving to Davenport to pick him up, that the officers would not interrogate him or mistreat him, and that Williams was not to talk to the officers about Pamela Powers until after consulting with McKnight upon his return to Des Moines. As a result of these conversations, it was agreed between McKnight and the Des Moines police officials that Detective Leaming and a fellow officer would drive to Davenport to pick up Williams, that they would bring him directly back to Des Moines, and that they would not question him during the trip.
In the meantime Williams was arraigned before a judge in Davenport on the outstanding arrest warrant. The judge advised him of his Miranda rights and committed him to jail. Before leaving the courtroom, Williams conferred with a lawyer named Kelly, who advised him not to make any statements until consulting with McKnight back in Des Moines.
Detective Leaming and his fellow officer arrived in Davenport about noon to pick up Williams and return him to Des Moines. Soon after their arrival they met with Williams and Kelly, who, they understood, was acting as Williams’ lawyer. Detective Leaming repeated the Miranda warnings, and told Williams:
“[W]e both know that you’re being represented here by Mr. Kelly and you’re being represented by Mr. McKnight in Des Moines, and … I want you to remember this because we’ll be visiting between here and Des Moines.”
Williams then conferred again with Kelly alone, and after this conference Kelly reiterated to Detective Leaming that Williams was not to be questioned about the disappearance of Pamela Powers until after he had consulted with McKnight back in Des Moines. When Leaming expressed some reservations, Kelly firmly stated that the agreement with McKnight was to be carried out that there was to be no interrogation of Williams during the automobile journey to Des Moines. Kelly was denied permission to ride in the police car back to Des Moines with Williams and the two officers.
The two detectives, with Williams in their charge, then set out on the 160-mile drive. At no time during the trip did Williams express a willingness to be interrogated in the absence of an attorney. Instead, he stated several times that “[w]hen I get to Des Moines and see Mr. McKnight, I am going to tell you the whole story.” Detective Leaming knew that Williams was a former mental patient, and knew also that he was deeply religious.
The detective and his prisoner soon embarked on a wide-ranging conversation covering a variety of topics, including the subject of religion. Then, not long after leaving Davenport and reaching the interstate highway, Detective Leaming delivered what has been referred to in the briefs and oral arguments as the “Christian burial speech.” Addressing Williams as “Reverend,” the detective said:
“I want to give you something to think about while we’re traveling down the road. … Number one, I want you to observe the weather conditions, it’s raining, it’s sleeting, it’s freezing, driving is very treacherous, visibility is poor, it’s going to be dark early this evening. They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl’s body is, that you yourself have only been there once, and if you get a snow on top of it you yourself may be unable to find it. And, since we will be going right past the area on the way into Des Moines, I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas [E]ve and murdered. And I feel we should stop and locate it on the way in rather than waiting until morning and trying to come back out after a snow storm and possibly not being able to find it at all.”
Williams asked Detective Leaming why he thought their route to Des Moines would be taking them past the girl’s body, and Leaming responded that he knew the body was in the area of Mitchellville a town they would be passing on the way to Des Moines. Leaming then stated: “I do not want you to answer me. I don’t want to discuss it any further. Just think about it as we’re riding down the road.”
As the car approached Grinnell, a town approximately 100 miles west of Davenport, Williams asked whether the police had found the victim’s shoes. When Detective Leaming replied that he was unsure, Williams directed the officers to a service station where he said he had left the shoes; a search for them proved unsuccessful. As they continued towards Des Moines, Williams asked whether the police had found the blanket, and directed the officers to a rest area where he said he had disposed of the blanket. Nothing was found. The car continued towards Des Moines, and as it approached Mitchellville, Williams said that he would show the officers where the body was. He then directed the police to the body of Pamela Powers.
Williams was indicted for first-degree murder. Before trial, his counsel moved to suppress all evidence relating to or resulting from any statements Williams had made during the automobile ride from Davenport to Des Moines. After an evidentiary hearing the trial judge denied the motion. He found that “an agreement was made between defense counsel and the police officials to the effect that the Defendant was not to be questioned on the return trip to Des Moines,” and that the evidence in question had been elicited from Williams during “a critical stage in the proceedings requiring the presence of counsel on his request.” The judge ruled, however, that Williams had “waived his right to have an attorney present during the giving of such information.”
The evidence in question was introduced over counsel’s continuing objection at the subsequent trial. The jury found Williams guilty of murder, and the judgment of conviction was affirmed by the Iowa Supreme Court, a bare majority of whose members agreed with the trial court that Williams had “waived his right to the presence of his counsel” on the automobile ride from Davenport to Des Moines.
Williams then petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Iowa. Counsel for the State and for Williams stipulated that “the case would be submitted on the record of facts and proceedings in the trial court, without taking of further testimony.” The District Court made findings of fact as summarized above, and concluded as a matter of law that the evidence in question had been wrongly admitted at Williams’ trial.
The Court of Appeals for the Eighth Circuit, with one judge dissenting affirmed this judgment and denied a petition for rehearing en banc. We granted certiorari to consider the constitutional issues presented.
II
[T]here is no need to review in this case the doctrine of Miranda v. Arizona, a doctrine designed to secure the constitutional privilege against compulsory self-incrimination. It is equally unnecessary to evaluate the ruling of the District Court that Williams’ self-incriminating statements were, indeed, involuntarily made. For it is clear that the judgment before us must in any event be affirmed upon the ground that Williams was deprived of a different constitutional right—the right to the assistance of counsel.
This right, guaranteed by the Sixth and Fourteenth Amendments, is indispensable to the fair administration of our adversary system of criminal justice. Its vital need at the pretrial stage has perhaps nowhere been more succinctly explained than in Mr. Justice Sutherland’s memorable words for the Court 44 years ago in Powell v. Alabama, 287 U.S. 45 (1932):
“[D]uring perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself.”
There has occasionally been a difference of opinion within the Court as to the peripheral scope of this constitutional right. But its basic contours, which are identical in state and federal contexts, are too well established to require extensive elaboration here. Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”
There can be no doubt in the present case that judicial proceedings had been initiated against Williams before the start of the automobile ride from Davenport to Des Moines. A warrant had been issued for his arrest, he had been arraigned on that warrant before a judge in a Davenport courtroom, and he had been committed by the court to confinement in jail. The State does not contend otherwise.
There can be no serious doubt, either, that Detective Leaming deliberately and designedly set out to elicit information from Williams just as surely as and perhaps more effectively than if he had formally interrogated him. Detective Leaming was fully aware before departing for Des Moines that Williams was being represented in Davenport by Kelly and in Des Moines by McKnight. Yet he purposely sought during Williams’ isolation from his lawyers to obtain as much incriminating information as possible. Indeed, Detective Leaming conceded as much when he testified at Williams’ trial:
“Q. In fact, Captain, whether he was a mental patient or not, you were trying to get all the information you could before he got to his lawyer, weren’t you?
“A. I was sure hoping to find out where that little girl was, yes, sir.
“Q. Well, I’ll put it this way: You was [sic] hoping to get all the information you could before Williams got back to McKnight, weren’t you?
“A. Yes, sir.”
The state courts clearly proceeded upon the hypothesis that Detective Leaming’s “Christian burial speech” had been tantamount to interrogation. Both courts recognized that Williams had been entitled to the assistance of counsel at the time he made the incriminating statements. Yet no such constitutional protection would have come into play if there had been no interrogation.
The circumstances of this case are thus constitutionally indistinguishable from those presented in Massiah v. United States. That the incriminating statements were elicited surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant. Rather, the clear rule of Massiah is that once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him. It thus requires no wooden or technical application of the Massiah doctrine to conclude that Williams was entitled to the assistance of counsel guaranteed to him by the Sixth and Fourteenth Amendments.
III
The Iowa courts recognized that Williams had been denied the constitutional right to the assistance of counsel. They held, however, that he had waived that right during the course of the automobile trip from Davenport to Des Moines. The state trial court explained its determination of waiver as follows:
“The time element involved on the trip, the general circumstances of it, and more importantly the absence on the Defendant’s part of any assertion of his right or desire not to give information absent the presence of his attorney, are the main foundations for the Court’s conclusion that he voluntarily waived such right.”
In the federal habeas corpus proceeding, the Court of Appeals [disagreed, stating]:
“[T]his court recently held that an accused can voluntarily, knowingly and intelligently waive his right to have counsel present at an interrogation after counsel has been appointed. … The prosecution, however, has the weighty obligation to show that the waiver was knowingly and intelligently made. [T]he state here failed to so show.”
[I]t was incumbent upon the State to prove “an intentional relinquishment or abandonment of a known right or privilege.” That standard has been reiterated in many cases. We have said that the right to counsel does not depend upon a request by the defendant. This strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pretrial proceedings.
We conclude [] that, judged by these standards, the record in this case falls far short of sustaining petitioner’s burden. It is true that Williams had been informed of and appeared to understand his right to counsel. But waiver requires not merely comprehension but relinquishment, and Williams’ consistent reliance upon the advice of counsel in dealing with the authorities refutes any suggestion that he waived that right.
Despite Williams’ express and implicit assertions of his right to counsel, Detective Leaming proceeded to elicit incriminating statements from Williams. Leaming did not preface this effort by telling Williams that he had a right to the presence of a lawyer, and made no effort at all to ascertain whether Williams wished to relinquish that right. The circumstances of record in this case thus provide no reasonable basis for finding that Williams waived his right to the assistance of counsel.
IV
The crime of which Williams was convicted was senseless and brutal, calling for swift and energetic action by the police to apprehend the perpetrator and gather evidence with which he could be convicted. No mission of law enforcement officials is more important. Yet “[d]isinterested zeal for the public good does not assure either wisdom or right in the methods it pursues.” Although we do not lightly affirm the issuance of a writ of habeas corpus in this case, so clear a violation of the Sixth and Fourteenth Amendments as here occurred cannot be condoned. The pressures on state executive and judicial officers charged with the administration of the criminal law are great, especially when the crime is murder and the victim a small child. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all. The judgment of the Court of Appeals is affirmed.
Mr. Justice MARSHALL, concurring.
I concur wholeheartedly in my Brother STEWART’s opinion for the Court, but add these words in light of the dissenting opinions filed today. The dissenters have, I believe, lost sight of the fundamental constitutional backbone of our criminal law. They seem to think that Detective Leaming’s actions were perfectly proper, indeed laudable, examples of “good police work.” In my view, good police work is something far different from catching the criminal at any price. It is equally important that the police, as guardians of the law, fulfill their responsibility to obey its commands scrupulously. For “in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.”
Mr. Justice STEVENS, concurring.
Underlying the surface issues in this case is the question whether a fugitive from justice can rely on his lawyer’s advice given in connection with a decision to surrender voluntarily. The defendant placed his trust in an experienced Iowa trial lawyer who in turn trusted the Iowa law enforcement authorities to honor a commitment made during negotiations which led to the apprehension of a potentially dangerous person. Under any analysis, this was a critical stage of the proceeding in which the participation of an independent professional was of vital importance to the accused and to society. At this stage as in countless others in which the law profoundly affects the life of the individual the lawyer is the essential medium through which the demands and commitments of the sovereign are communicated to the citizen. If, in the long run, we are seriously concerned about the individual’s effective representation by counsel, the State cannot be permitted to dishonor its promise to this lawyer.
Mr. Chief Justice BURGER, dissenting.
The result in this case ought to be intolerable in any society which purports to call itself an organized society. It continues the Court by the narrowest margin on the much-criticized course of punishing the public for the mistakes and misdeeds of law enforcement officers, instead of punishing the officer directly, if in fact he is guilty of wrongdoing. It mechanically and blindly keeps reliable evidence from juries whether the claimed constitutional violation involves gross police misconduct or honest human error.
Williams is guilty of the savage murder of a small child; no member of the Court contends he is not. While in custody, and after no fewer than five warnings of his rights to silence and to counsel, he led police to the concealed body of his victim. The Court concedes Williams was not threatened or coerced and that he spoke and acted voluntarily and with full awareness of his constitutional rights. In the face of all this, the Court now holds that because Williams was prompted by the detective’s statement—not interrogation but a statement—the jury must not be told how the police found the body.
Today’s holding fulfills Judge (later Mr. Justice) Cardozo’s grim prophecy that someday some court might carry the exclusionary rule to the absurd extent that its operative effect would exclude evidence relating to the body of a murder victim because of the means by which it was found.
[Chief Justice Burger’s dissent then raised two main points. First, he argued that Williams’s statements were voluntary. Second, he urged that the exclusionary rule should not be applied to “non-egregious police conduct.”]
Mr. Justice WHITE, with whom Mr. Justice BLACKMUN and Mr. Justice REHNQUIST join, dissenting.
The respondent in this case killed a 10-year-old child. The majority sets aside his conviction, holding that certain statements of unquestioned reliability were unconstitutionally obtained from him, and under the circumstances probably makes it impossible to retry him. Because there is nothing in the Constitution or in our previous cases which requires the Court’s action, I dissent.
The issue in this case is whether respondent who was entitled not to make any statements to the police without consultation with and/or presence of counsel validly waived those rights. In order to show that a right has been waived [], the State must prove “an intentional relinquishment or abandonment of a known right or privilege.” The majority creates no new rule preventing an accused who has retained a lawyer from waiving his right to the lawyer’s presence during questioning. The majority simply finds that no waiver was proved in this case. I disagree. That respondent knew of his right not to say anything to the officers without advice and presence of counsel is established on this record to a moral certainty. He was advised of the right by three officials of the State—telling at least one that he understood the right and by two lawyers. Finally, he further demonstrated his knowledge of the right by informing the police that he would tell them the story in the presence of McKnight when they arrived in Des Moines. The issue in this case, then, is whether respondent relinquished that right intentionally.
Respondent relinquished his right not to talk to the police about his crime when the car approached the place where he had hidden the victim’s clothes. Men usually intend to do what they do, and there is nothing in the record to support the proposition that respondent’s decision to talk was anything but an exercise of his own free will. Apparently, without any prodding from the officers, respondent—who had earlier said that he would tell the whole story when he arrived in Des Moines—spontaneously changed his mind about the timing of his disclosures when the car approached the places where he had hidden the evidence. However, even if his statements were influenced by Detective Leaming’s above-quoted statement, respondent’s decision to talk in the absence of counsel can hardly be viewed as the product of an overborne will. The statement by Leaming was not coercive; it was accompanied by a request that respondent not respond to it; and it was delivered hours before respondent decided to make any statement. Respondent’s waiver was thus knowing and intentional.
The majority’s contrary conclusion seems to rest on the fact that respondent “asserted” his right to counsel by retaining and consulting with one lawyer and by consulting with another. How this supports the conclusion that respondent’s later relinquishment of his right not to talk in the absence of counsel was unintentional is a mystery. The fact that respondent consulted with counsel on the question whether he should talk to the police in counsel’s absence makes his later decision to talk in counsel’s absence better informed and, if anything, more intelligent.
The majority recognizes that even after this “assertion” of his right to counsel, it would have found that respondent waived his right not to talk in counsel’s absence if his waiver had been express—i.e., if the officers had asked him in the car whether he would be willing to answer questions in counsel’s absence and if he had answered “yes.” But waiver is not a formalistic concept. Waiver is shown whenever the facts establish that an accused knew of a right and intended to relinquish it. Such waiver, even if not express, was plainly shown here. The only other conceivable basis for the majority’s holding is the implicit suggestion that the right involved in Massiah v. United States, as distinguished from the right involved in Miranda v. Arizona, is a right not to be asked any questions in counsel’s absence rather than a right not to answer any questions in counsel’s absence, and that the right not to be asked questions must be waived before the questions are asked. Such wafer-thin distinctions cannot determine whether a guilty murderer should go free. The only conceivable purpose for the presence of counsel during questioning is to protect an accused from making incriminating answers. Questions, unanswered, have no significance at all. Absent coercion—no matter how the right involved is defined—an accused is amply protected by a rule requiring waiver before or simultaneously with the giving by him of an answer or the making by him of a statement.
The consequence of the majority’s decision is, as the majority recognizes, extremely serious. A mentally disturbed killer whose guilt is not in question may be released. Why? Apparently the answer is that the majority believes that the law enforcement officers acted in a way which involves some risk of injury to society and that such conduct should be deterred. However, the officers’ conduct did not, and was not likely to, jeopardize the fairness of respondent’s trial or in any way risk the conviction of an innocent man the risk against which the Sixth Amendment guarantee of assistance of counsel is designed to protect. The police did nothing “wrong,” let alone anything “unconstitutional.” To anyone not lost in the intricacies of the prophylactic rules of Miranda v. Arizona, the result in this case seems utterly senseless; and for the reasons stated [above] even applying those rules as well as the rule of Massiah v. United States, the statements made by respondent were properly admitted. In light of these considerations, the majority’s protest that the result in this case is justified by a “clear violation” of the Sixth and Fourteenth Amendments has a distressing hollow ring. I respectfully dissent.
Mr. Justice BLACKMUN, with whom Mr. Justice WHITE and Mr. Justice REHNQUIST join, dissenting.
What the Court chooses to do here, and with which I disagree, is to hold that respondent Williams’ situation was in the mold of Massiah v. United States, that is, that it was dominated by a denial to Williams of his Sixth Amendment right to counsel after criminal proceedings had been instituted against him. The Court rules that the Sixth Amendment was violated because Detective Leaming “purposely sought during Williams’ isolation from his lawyers to obtain as much incriminating information as possible.” I cannot regard that as unconstitutional per se.
First, the police did not deliberately seek to isolate Williams from his lawyers so as to deprive him of the assistance of counsel. The isolation in this case was a necessary incident of transporting Williams to the county where the crime was committed.
Second, Leaming’s purpose was not solely to obtain incriminating evidence. The victim had been missing for only two days, and the police could not be certain that she was dead. Leaming, of course, and in accord with his duty, was “hoping to find out where that little girl was” but such motivation does not equate with an intention to evade the Sixth Amendment. Moreover, the Court seems to me to place an undue emphasis and aspersion on what it and the lower courts have chosen to call the “Christian burial speech,” and on Williams’ “deeply religious” convictions.
Third, not every attempt to elicit information should be regarded as “tantamount to interrogation.” I am not persuaded that Leaming’s observations and comments, made as the police car traversed the snowy and slippery miles between Davenport and Des Moines that winter afternoon, were an interrogation, direct or subtle, of Williams. Contrary to this Court’s statement, the Iowa Supreme Court appears to me to have thought and held otherwise and I agree. Williams, after all, was counseled by lawyers, and warned by the arraigning judge in Davenport and by the police, and yet it was he who started the travel conversations and brought up the subject of the criminal investigation. Without further reviewing the circumstances of the trip, I would say it is clear there was no interrogation.
In summary, it seems to me that the Court is holding that Massiah is violated whenever police engage in any conduct, in the absence of counsel, with the subjective desire to obtain information from a suspect after arraignment. Such a rule is far too broad. Persons in custody frequently volunteer statements in response to stimuli other than interrogation. When there is no interrogation, such statements should be admissible as long as they are truly voluntary.
The Massiah point thus being of no consequence, I would vacate the judgment of the Court of Appeals and remand the case for consideration of the issue of voluntariness, in the constitutional sense, of Williams’ statements, an issue the Court of Appeals did not reach when the case was before it.
Notes, Comments, and Questions
Compare the outcome in Williams to Rhode Island v. Innis (Chapter 25). Why are the outcomes different in these cases?
The Court in Williams took the defendant’s guilt for granted, which one can understand because Williams was seen leaving the YMCA with a body and eventually led police to the hidden body of the victim. Subsequent research, however, suggests another possibility—that a different YMCA resident killed Pamela Powers and put her body in Williams’s room, after which Williams panicked and tried to hide the evidence. For a discussion of the facts, see Tom N. McInnis, Nix v. Williams and the Inevitable Discovery Exception: Creation of a Legal Safety Net, 28 St. Louis U. Pub. L. Rev. 397, 417-27 (2009). While Williams may well be guilty, his guilt is not as obvious as the Justices seemed to believe. The title of Professor McInnis’s article refers to this case as “Nix v. Williams,” the name under which we will see the case again later in the semester.
Double Jeopardy and the “Offense-Specific” Sixth Amendment
In McNeil v. Wisconsin, 501 U.S. 171 (1991) the Court stated that the Sixth Amendment right to the assistance of counsel “is offense-specific.” Accordingly, even if a suspect’s right to counsel has attached for one crime, the Sixth Amendment does not preclude questioning by law enforcement about a different offense. Under the Miranda Rule, a suspect who invokes his right to counsel cannot be questioned about any crime,1 but in situations where Miranda does not apply (for example, when a suspect is not in custody or is questioned by an undercover officer), the offense-specific nature of the Massiah doctrine may allow questioning about some crimes while preventing questioning about others. The Court explained this principle further in Texas v. Cobb, which appears below.
Cobb will be easier to understand following a brief review of decisions interpreting the Double Jeopardy Clause of the Fifth Amendment. That amendment provides, “No person shall … be subject for the same offence to be twice put in jeopardy of life or limb.” In “Double Jeopardy Law Made Simple,” Professor Akhil Amar observed, “The Double Jeopardy Clause speaks of the ‘same’ offense, and yet the Court casually applies the Clause to offenses that are not the same but obviously different.”2 Professor Amar’s criticism cannot be denied. Rather than consider the strengths and weaknesses of double jeopardy jurisprudence, we will focus on the basic definition of “same offense” articulated by the Court.
In Blockburger v. United States, 284 U.S. 299 (1932), the Court set forth a test for determining whether, “where the same act or transaction constitutes a violation of two distinct statutory provisions,” someone has committed two separate crimes for double jeopardy purposes. If the two statutes charge the defendant with committing the “same offense,” then the defendant may be punished for violating only one of them. If, however, the two statutes do not describe the “same offense,” then the defendant’s conduct can be punished under both statutes. “[T]he test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.”
A few examples will illustrate how the test works in practice:
If a suspect possesses cocaine with intent to sell it, she likely could be charged either with “simple possession” of the contraband or with “possession with intent to distribute.” Often, the elements of “possession with intent to distribute” are exactly the same as those of “simple possession”—other than the culpable mental state of “intent to distribute.” If so, then these two crimes are the “same offense” under Blockburger. (As Professor Amar and others have noted, these are certainly not the “same offense” under plain English.) They are the same offense because while “possession with intent to distribute” has an element that “simple possession” lacks, “simple possession” has no element that is not part of “possession with intent to distribute.” In other words, “simple possession” is a lesser included offense of “possession with intent to distribute.” This example shows the general principle that lesser included offenses are the “same offense” as the greater offenses in which they are included.
Note that the “same offense” definition is symmetric. If Crime A is the same offense as Crime B, then Crime B is the same offense as Crime A.
Continuing with the theme of lesser included offenses, negligent homicide is the “same offense” as involuntary manslaughter—assuming that the only difference between the crimes is the culpable mental state that the prosecution must prove. Both crimes require a homicide, and negligent homicide is the lesser included offense of reckless (involuntary) manslaughter. (Recall that anyone who is reckless is also by definition negligent.)
By contrast, consider a devious business owner who burns down his rival’s warehouse and accidentally kills a security guard who was inside during the fire. If the malefactor were tried for arson, could he later be tried for negligent homicide? Yes. Arson has an element that negligent homicide lacks—burning. And negligent homicide has an element that arson lacks—a death. Thus, even though the charges arise from the same transaction, they are not the “same offense” under Blockburger. Therefore, regardless of the result of the arson trial, prosecutors may freely charge the defendant for negligent homicide without offending the Court’s double jeopardy doctrine.
Here, now, is a trickier one: Imagine that the same warehouse arsonist is not charged with the crimes listed above, but is instead charged with felony murder. If he is acquitted, may frustrated prosecutors charge him with arson? Probably not. Chances are that when he was charged with felony murder, the predicate felony was arson. In that case, the elements of the offense included all the elements of arson, along with the death arising from the crime. Therefore, ordinary arson, standing alone, is a lesser included offense of the felony murder charge for which the defendant was put in jeopardy.
The result of this doctrine is that if the defendant is tried first for arson, the prosecution may not subsequently charge him with felony murder (because that is the “same offense” as arson), but may subsequently charge him with negligent homicide or reckless manslaughter (which are not the “same offense”).
To determine whether two charges arising from the same conduct are the “same offense,” a student should list the elements of each crime. If each crime has an element that the other lacks, then the crimes are not the “same offense.” If one crime’s elements are fully included among those of the other crime, then they are the “same offense.”
Note that if two charges arise from separate events—for example, two different bank robberies—a defendant may be tried for both of them (in whatever order) without offending the Double Jeopardy Clause. For instance, a suspect observed selling cocaine to ten different buyers may be tried separately for each of the sales.
One last point: In Gamble v. United States, 139 S. Ct. 1960 (2019), the Court upheld the longstanding “dual-sovereignty doctrine.” Under this doctrine, a state prosecution does not preclude a subsequent federal prosecution for the same conduct, regardless of the elements of the crimes charged. Similarly, a federal prosecution does not preclude a subsequent state prosecution.
Armed with a basic understanding of double jeopardy law, students will better grasp the importance of Texas v. Cobb, which imports this jurisprudence into Sixth Amendment doctrine.
Supreme Court of the United States
Texas v. Raymond Levi Cobb
Decided April 2, 2001 – 532 U.S. 162
Chief Justice REHNQUIST delivered the opinion of the Court.
The Texas Court of Criminal Appeals held that a criminal defendant’s Sixth Amendment right to counsel attaches not only to the offense with which he is charged, but to other offenses “closely related factually” to the charged offense. We hold that our decision in McNeil v. Wisconsin meant what it said, and that the Sixth Amendment right is “offense specific.”
In December 1993, Lindsey Owings reported to the Walker County, Texas, Sheriff’s Office that the home he shared with his wife, Margaret, and their 16-month-old daughter, Kori Rae, had been burglarized. He also informed police that his wife and daughter were missing. Respondent Raymond Levi Cobb lived across the street from the Owings. Acting on an anonymous tip that respondent was involved in the burglary, Walker County investigators questioned him about the events. He denied involvement. In July 1994, while under arrest for an unrelated offense, respondent was again questioned about the incident. Respondent then gave a written statement confessing to the burglary, but he denied knowledge relating to the disappearances. Respondent was subsequently indicted for the burglary, and Hal Ridley was appointed in August 1994 to represent respondent on that charge.
Shortly after Ridley’s appointment, investigators asked and received his permission to question respondent about the disappearances. Respondent continued to deny involvement. Investigators repeated this process in September 1995, again with Ridley’s permission and again with the same result.
In November 1995, respondent, free on bond in the burglary case, was living with his father in Odessa, Texas. At that time, respondent’s father contacted the Walker County Sheriff’s Office to report that respondent had confessed to him that he killed Margaret Owings in the course of the burglary. Walker County investigators directed respondent’s father to the Odessa police station, where he gave a statement. Odessa police then faxed the statement to Walker County, where investigators secured a warrant for respondent’s arrest and faxed it back to Odessa. Shortly thereafter, Odessa police took respondent into custody and administered warnings pursuant to Miranda v. Arizona. Respondent waived these rights.
After a short time, respondent confessed to murdering both Margaret and Kori Rae [in detail].
Respondent later led police to the location where he had buried the victims’ bodies.
Respondent was convicted of capital murder for murdering more than one person in the course of a single criminal transaction. He was sentenced to death. On appeal to the Court of Criminal Appeals of Texas, respondent argued, inter alia, that his confession should have been suppressed because it was obtained in violation of his Sixth Amendment right to counsel. [R]espondent contended that his right to counsel had attached when Ridley was appointed in the burglary case and that Odessa police were therefore required to secure Ridley’s permission before proceeding with the interrogation.
The Court of Criminal Appeals reversed respondent’s conviction by a divided vote and remanded for a new trial. The court held that “once the right to counsel attaches to the offense charged, it also attaches to any other offense that is very closely related factually to the offense charged.” Finding the capital murder charge to be “factually interwoven with the burglary,” the court concluded that respondent’s Sixth Amendment right to counsel had attached on the capital murder charge even though respondent had not yet been charged with that offense.
The State sought review in this Court, and we granted certiorari to consider first whether the Sixth Amendment right to counsel extends to crimes that are “factually related” to those that have actually been charged, and second whether respondent made a valid unilateral waiver of that right in this case. Because we answer the first question in the negative, we do not reach the second.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” In McNeil v. Wisconsin, we explained when this right arises:
“The Sixth Amendment right [to counsel] … is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”
Accordingly, we held that a defendant’s statements regarding offenses for which he had not been charged were admissible notwithstanding the attachment of his Sixth Amendment right to counsel on other charged offenses.
Some state courts and Federal Courts of Appeals, however, have read into McNeil’s offense-specific definition an exception for crimes that are “factually related” to a charged offense. Respondent predicts that the offense-specific rule will prove “disastrous” to suspects’ constitutional rights and will “permit law enforcement officers almost complete and total license to conduct unwanted and uncounseled interrogations.” Besides offering no evidence that such a parade of horribles has occurred in those jurisdictions that have not enlarged upon McNeil, he fails to appreciate the significance of two critical considerations. First, there can be no doubt that a suspect must be apprised of his rights against compulsory self-incrimination and to consult with an attorney before authorities may conduct custodial interrogation. In the present case, police scrupulously followed Miranda’s dictates when questioning respondent. Second, it is critical to recognize that the Constitution does not negate society’s interest in the ability of police to talk to witnesses and suspects, even those who have been charged with other offenses.
“Since the ready ability to obtain uncoerced confessions is not an evil but an unmitigated good, society would be the loser. Admissions of guilt resulting from valid Miranda waivers ‘are more than merely “desirable”; they are essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.’”
Although it is clear that the Sixth Amendment right to counsel attaches only to charged offenses, we have recognized in other contexts that the definition of an “offense” is not necessarily limited to the four corners of a charging instrument. In Blockburger v. United States, we explained that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” We have since applied the Blockburger test to delineate the scope of the Fifth Amendment’s Double Jeopardy Clause, which prevents multiple or successive prosecutions for the “same offence.” We see no constitutional difference between the meaning of the term “offense” in the contexts of double jeopardy and of the right to counsel. Accordingly, we hold that when the Sixth Amendment right to counsel attaches, it does encompass offenses that, even if not formally charged, would be considered the same offense under the Blockburger test.
It remains only to apply these principles to the facts at hand. At the time he confessed to Odessa police, respondent had been indicted for burglary of the Owings residence, but he had not been charged in the murders of Margaret and Kori Rae. As defined by Texas law, burglary and capital murder are not the same offense under Blockburger. Accordingly, the Sixth Amendment right to counsel did not bar police from interrogating respondent regarding the murders, and respondent’s confession was therefore admissible.
The judgment of the Court of Criminal Appeals of Texas is reversed.
Justice BREYER, with whom Justice STEVENS, Justice SOUTER, and Justice GINSBURG join, dissenting.
This case focuses upon the meaning of a single word, “offense,” when it arises in the context of the Sixth Amendment. Several basic background principles define that context.
First, the Sixth Amendment right to counsel plays a central role in ensuring the fairness of criminal proceedings in our system of justice.
Second, the right attaches when adversary proceedings, triggered by the government’s formal accusation of a crime, begin.
Third, once this right attaches, law enforcement officials are required, in most circumstances, to deal with the defendant through counsel rather than directly, even if the defendant has waived his Fifth Amendment rights.
Fourth, the particular aspect of the right here at issue—the rule that the police ordinarily must communicate with the defendant through counsel—has important limits. In particular, recognizing the need for law enforcement officials to investigate “new or additional crimes” not the subject of current proceedings, this Court has made clear that the right to counsel does not attach to any and every crime that an accused may commit or have committed. The right “cannot be invoked once for all future prosecutions,” and it does not forbid “interrogation unrelated to the charge.” In a word, as this Court previously noted, the right is “offense specific.”
This case focuses upon the last-mentioned principle, in particular upon the meaning of the words “offense specific.” These words appear in this Court’s Sixth Amendment case law, not in the Sixth Amendment’s text. The definition of these words is not self-evident. Sometimes the term “offense” may refer to words that are written in a criminal statute; sometimes it may refer generally to a course of conduct in the world, aspects of which constitute the elements of one or more crimes; and sometimes it may refer, narrowly and technically, just to the conceptually severable aspects of the latter. This case requires us to determine whether an “offense”—for Sixth Amendment purposes—includes factually related aspects of a single course of conduct other than those few acts that make up the essential elements of the crime charged.
We should answer this question in light of the Sixth Amendment’s basic objectives as set forth in this Court’s case law. At the very least, we should answer it in a way that does not undermine those objectives. But the Court today decides that “offense” means the crime set forth within “the four corners of a charging instrument,” along with other crimes that “would be considered the same offense” under the test established by Blockburger v. United States. In my view, this unnecessarily technical definition undermines Sixth Amendment protections while doing nothing to further effective law enforcement.
For one thing, the majority’s rule, while leaving the Fifth Amendment’s protections in place, threatens to diminish severely the additional protection that, under this Court’s rulings, the Sixth Amendment provides when it grants the right to counsel to defendants who have been charged with a crime and insists that law enforcement officers thereafter communicate with them through that counsel.
[T]he Sixth Amendment right at issue is independent of the Fifth Amendment’s protections; and the importance of this Sixth Amendment right has been repeatedly recognized in our cases. The majority’s rule permits law enforcement officials to question those charged with a crime without first approaching counsel, through the simple device of asking questions about any other related crime not actually charged in the indictment. Thus, the police could ask the individual charged with robbery about, say, the assault of the cashier not yet charged, or about any other uncharged offense (unless under Blockburger’s definition it counts as the “same crime”), all without notifying counsel. Indeed, the majority’s rule would permit law enforcement officials to question anyone charged with any crime in any one of the examples just given about his or her conduct on the single relevant occasion without notifying counsel unless the prosecutor has charged every possible crime arising out of that same brief course of conduct. What Sixth Amendment sense—what common sense—does such a rule make? What is left of the “communicate through counsel” rule? The majority’s approach is inconsistent with any common understanding of the scope of counsel’s representation. It will undermine the lawyer’s role as “‘medium’” between the defendant and the government. And it will, on a random basis, remove a significant portion of the protection that this Court has found inherent in the Sixth Amendment.
At the same time, the majority’s rule threatens the legal clarity necessary for effective law enforcement. That is because the majority, aware that the word “offense” ought to encompass something beyond “the four corners of the charging instrument,” imports into Sixth Amendment law the definition of “offense” set forth in Blockburger v. United States, a case interpreting the Double Jeopardy Clause of the Fifth Amendment, which Clause uses the word “offence” but otherwise has no relevance here. Whatever Fifth Amendment virtues Blockburger may have, to import it into this Sixth Amendment context will work havoc.
In theory, the test says that two offenses are the “same offense” unless each requires proof of a fact that the other does not. That means that most of the different crimes mentioned above are not the “same offense.” Under many States’ laws, for example, the statute defining assault and the statute defining robbery each requires proof of a fact that the other does not. Hence the extension of the definition of “offense” that is accomplished by the use of the Blockburger test does nothing to address the substantial concerns about the circumvention of the Sixth Amendment right that are raised by the majority’s rule.
But, more to the point, the simple-sounding Blockburger test has proved extraordinarily difficult to administer in practice. Judges, lawyers, and law professors often disagree about how to apply it. The test has emerged as a tool in an area of our jurisprudence that THE CHIEF JUSTICE has described as “a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator.” Yet the Court now asks, not the lawyers and judges who ordinarily work with double jeopardy law, but police officers in the field, to navigate Blockburger when they question suspects. Some will apply the test successfully; some will not. Legal challenges are inevitable. The result, I believe, will resemble not so much the Sargasso Sea as the criminal law equivalent of Milton’s “Serbonian Bog … Where Armies whole have sunk.”
There is, of course, an alternative. We can, and should, define “offense” in terms of the conduct that constitutes the crime that the offender committed on a particular occasion, including criminal acts that are “closely related to” or “inextricably intertwined with” the particular crime set forth in the charging instrument. This alternative is not perfect. The language used lacks the precision for which police officers may hope; and it requires lower courts to specify its meaning further as they apply it in individual cases. Yet virtually every lower court in the United States to consider the issue has defined “offense” in the Sixth Amendment context to encompass such closely related acts. These courts have found offenses “closely related” where they involved the same victim, set of acts, evidence, or motivation. They have found offenses unrelated where time, location, or factual circumstances significantly separated the one from the other.
One cannot say in favor of this commonly followed approach that it is perfectly clear—only that, because it comports with common sense, it is far easier to apply than that of the majority. One might add that, unlike the majority’s test, it is consistent with this Court’s assumptions in previous cases. And, most importantly, the “closely related” test furthers, rather than undermines, the Sixth Amendment’s “right to counsel,” a right so necessary to the realization in practice of that most “noble ideal,” a fair trial.
The Texas Court of Criminal Appeals, following this commonly accepted approach, found that the charged burglary and the uncharged murders were “closely related.” All occurred during a short period of time on the same day in the same basic location. The victims of the murders were also victims of the burglary. Cobb committed one of the murders in furtherance of the robbery, the other to cover up the crimes. The police, when questioning Cobb, knew that he already had a lawyer representing him on the burglary charges and had demonstrated their belief that this lawyer also represented Cobb in respect to the murders by asking his permission to question Cobb about the murders on previous occasions. The relatedness of the crimes is well illustrated by the impossibility of questioning Cobb about the murders without eliciting admissions about the burglary. Nor, in my view, did Cobb waive his right to counsel. These considerations are sufficient. The police officers ought to have spoken to Cobb’s counsel before questioning Cobb. I would affirm the decision of the Texas court. Consequently, I dissent.
When Has the Right to Counsel Attached?
In Rothgery v. Gillespie County, 554 U.S. 191 (2008), the Court reviewed when the Sixth Amendment right to counsel attaches. After reiterating that “it does not attach until a prosecution is commenced,” the Court quoted precedent stating that commencement occurs upon “the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”
Turning to the issue presented in Rothgery, the Court held that “the right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty,” regardless of whether a prosecutor attends this hearing or is even aware of it.
Students should note that mere arrest does not trigger the right to counsel. Accordingly, for an arrested suspect who has not been indicted—or otherwise the subject of formal proceedings—the primary regulation of interrogation will come from Miranda, not Massiah. For a suspect in custody whose right to counsel has attached, both doctrines will apply.
Consider these scenarios:
A suspect is arrested and taken to jail. Police place an undercover agent (disguised as a fellow prisoner) in the suspect’s cell. The agent asks the suspect questions about the crimes leading to the suspect’s arrest. Permissible? Why or why not?
Assume this same suspect is taken the next day to the courthouse. A judge sets bail, which the suspect cannot afford, and the suspect returns to jail. The same undercover agent asks the suspect questions about the crimes leading to the suspect’s arrest. Permissible? Why or why not?
In our next chapter, we continue our study of the Massiah doctrine. In particular, we examine how undercover agents can obtain information from a suspect whose right to counsel has attached without violating the Sixth Amendment. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/03%3A_Interrogations/3.07%3A_Chapter_29_-_The_Sixth_Amendment-_The_Massiah_Doctrine.txt |
INTERROGATIONS
The Miranda Rule: Exceptions
In Miranda v. Arizona, the Court summarized its holding as follows: “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” The Court then explained that “unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it,” police would be required to provide certain information—the Miranda warnings—to suspects.
We have learned that this holding spawned controversy about the meaning of “custody” and “interrogation,” as well as over when a suspect’s waiver of rights has been “made voluntarily, knowingly and intelligently.”
In this chapter, we will review three exceptions that the Court has created to the Miranda Rule. Under each of these exceptions, a prosecutor may use statements against a defendant even though (1) those statements were obtained through custodial interrogation and (2) police either did not provide the Miranda warnings or did so but did not obtain a valid waiver. The three exceptions are known as the “impeachment exception,” the “emergency exception” (also known as the “public safety exception”), and the “routine booking exception.” We begin with impeachment.
Supreme Court of the United States
Viven Harris v. New York
Decided Feb. 24, 1971 – 401 U.S. 222
Mr. Chief Justice BURGER delivered the opinion of the Court.
We granted the writ in this case to consider petitioner’s claim that a statement made by him to police under circumstances rendering it inadmissible to establish the prosecution’s case in chief under Miranda v. Arizona may not be used to impeach his credibility.
The State of New York charged petitioner in a two-count indictment with twice selling heroin to an undercover police officer. At a subsequent jury trial the officer was the State’s chief witness, and he testified as to details of the two sales. A second officer verified collateral details of the sales, and a third offered testimony about the chemical analysis of the heroin.
Petitioner took the stand in his own defense. He admitted knowing the undercover police officer but denied a sale on January 4, 1966. He admitted making a sale of contents of a glassine bag to the officer on January 6 but claimed it was baking powder and part of a scheme to defraud the purchaser.
On cross-examination petitioner was asked seriatim whether he had made specified statements to the police immediately following his arrest on January 7—statements that partially contradicted petitioner’s direct testimony at trial. In response to the cross-examination, petitioner testified that he could not remember virtually any of the questions or answers recited by the prosecutor. At the request of petitioner’s counsel the written statement from which the prosecutor had read questions and answers in his impeaching process was placed in the record for possible use on appeal; the statement was not shown to the jury.
The trial judge instructed the jury that the statements attributed to petitioner by the prosecution could be considered only in passing on petitioner’s credibility and not as evidence of guilt. In closing summations both counsel argued the substance of the impeaching statements. The jury then found petitioner guilty on the second count of the indictment. The New York Court of Appeals affirmed in a per curiam opinion.
At trial the prosecution made no effort in its case in chief to use the statements allegedly made by petitioner, conceding that they were inadmissible under Miranda v. Arizona. The transcript of the interrogation used in the impeachment, but not given to the jury, shows that no warning of a right to appointed counsel was given before questions were put to petitioner when he was taken into custody. Petitioner makes no claim that the statements made to the police were coerced or involuntary.
Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court’s holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.
“It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. ‘[T]here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.’”
Petitioner’s testimony in his own behalf concerning the events of January 7 contrasted sharply with what he told the police shortly after his arrest. The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner’s credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.
Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.
The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements. Affirmed.
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL, join, dissenting.
The objective of deterring improper police conduct is only part of the larger objective of safeguarding the integrity of our adversary system. The “essential mainstay” of that system is the privilege against self-incrimination, which for that reason has occupied a central place in our jurisprudence since before the Nation’s birth. Moreover, “we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. … All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government … must accord to the dignity and integrity of its citizens.” These values are plainly jeopardized if an exception against admission of tainted statements is made for those used for impeachment purposes. Moreover, it is monstrous that courts should aid or abet the law-breaking police officer. It is abiding truth that “[n]othing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” Thus even to the extent that Miranda was aimed at deterring police practices in disregard of the Constitution, I fear that today’s holding will seriously undermine the achievement of that objective. The Court today tells the police that they may freely interrogate an accused incommunicado and without counsel and know that although any statement they obtain in violation of Miranda cannot be used on the State’s direct case, it may be introduced if the defendant has the temerity to testify in his own defense. This goes far toward undoing much of the progress made in conforming police methods to the Constitution. I dissent.
Notes, Comments, and Questions
Justice Brennan’s dissent in Harris raises the concern that police officers will intentionally defy Miranda, knowing that the results of impermissible interrogations can be used to impeach defendants (or to deter them from testifying). The Court of Appeals of Alaska addressed the issue in State v. Batts, 195 P.3d 144 (2008). Following the reasoning of the Harris majority, the Batts Court held that—under Alaska law—statements made during interrogations conducted in violation of Miranda normally may be used for impeachment. However, the Alaska court held that “in cases where the violation of Miranda was either intentional or egregious—by which we mean a violation that would have been obvious to any reasonable police officer”—the resulting statements are inadmissible, even for impeachment. The court’s aim was to balance deterrence of police misconduct (achieved by excluding evidence in cases of especially bad police misbehavior) with the state’s interest in deterring perjury and presenting useful evidence to juries (achieved by allowing impeachment in cases of more minor police wrongdoing). Is that a sensible result? If you were setting policy for your state, would you allow impeachment in all cases of Miranda violations, only in certain cases (perhaps like the Alaska rule), or never (as Justice Brennan advocated)?
In the next case, the Court articulated what is known as the “emergency” or “public safety” exception to the Miranda Rule. Students reading this case should consider two questions. First, is such an exception justified? Second, if so, do the facts presented constitute an “emergency” to which the exception should apply?
Supreme Court of the United States
New York v. Benjamin Quarles
Decided June 12, 1984 – 467 U.S. 649
Justice REHNQUIST delivered the opinion of the Court.
Respondent Benjamin Quarles was charged in the New York trial court with criminal possession of a weapon. The trial court suppressed the gun in question, and a statement made by respondent, because the statement was obtained by police before they read respondent his “Miranda rights.” That ruling was affirmed on appeal through the New York Court of Appeals. We granted certiorari and we now reverse. We conclude that under the circumstances involved in this case, overriding considerations of public safety justify the officer’s failure to provide Miranda warnings before he asked questions devoted to locating the abandoned weapon.
On September 11, 1980, at approximately 12:30 a.m., Officer Frank Kraft and Officer Sal Scarring were on road patrol in Queens, N.Y., when a young woman approached their car. She told them that she had just been raped by a black male, approximately six feet tall, who was wearing a black jacket with the name “Big Ben” printed in yellow letters on the back. She told the officers that the man had just entered an A & P supermarket located nearby and that the man was carrying a gun.
The officers drove the woman to the supermarket, and Officer Kraft entered the store while Officer Scarring radioed for assistance. Officer Kraft quickly spotted respondent, who matched the description given by the woman, approaching a checkout counter. Apparently upon seeing the officer, respondent turned and ran toward the rear of the store, and Officer Kraft pursued him with a drawn gun. When respondent turned the corner at the end of an aisle, Officer Kraft lost sight of him for several seconds, and upon regaining sight of respondent, ordered him to stop and put his hands over his head.
Although more than three other officers had arrived on the scene by that time, Officer Kraft was the first to reach respondent. He frisked him and discovered that he was wearing a shoulder holster which was then empty. After handcuffing him, Officer Kraft asked him where the gun was. Respondent nodded in the direction of some empty cartons and responded, “the gun is over there.” Officer Kraft thereafter retrieved a loaded .38-caliber revolver from one of the cartons, formally placed respondent under arrest, and read him his Miranda rights from a printed card. Respondent indicated that he would be willing to answer questions without an attorney present. Officer Kraft then asked respondent if he owned the gun and where he had purchased it. Respondent answered that he did own it and that he had purchased it in Miami, Fla.
In the subsequent prosecution of respondent for criminal possession of a weapon, the judge excluded the statement, “the gun is over there,” and the gun because the officer had not given respondent the warnings required by our decision in Miranda v. Arizona before asking him where the gun was located. The judge excluded the other statements about respondent’s ownership of the gun and the place of purchase, as evidence tainted by the prior Miranda violation. The Appellate Division of the Supreme Court of New York affirmed without opinion.
The Court of Appeals granted leave to appeal and affirmed by a 4-3 vote. It concluded that respondent was in “custody” within the meaning of Miranda during all questioning and rejected the State’s argument that the exigencies of the situation justified Officer Kraft’s failure to read respondent his Miranda rights until after he had located the gun. The court declined to recognize an exigency exception to the usual requirements of Miranda because it found no indication from Officer Kraft’s testimony at the suppression hearing that his subjective motivation in asking the question was to protect his own safety or the safety of the public. For the reasons which follow, we believe that this case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda.
In this case we have before us no claim that respondent’s statements were actually compelled by police conduct which overcame his will to resist. Thus the only issue before us is whether Officer Kraft was justified in failing to make available to respondent the procedural safeguards associated with the privilege against compulsory self-incrimination since Miranda.
The New York Court of Appeals was undoubtedly correct in deciding that the facts of this case come within the ambit of the Miranda decision as we have subsequently interpreted it. We agree that respondent was in police custody because we have noted that “the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” Here Quarles was surrounded by at least four police officers and was handcuffed when the questioning at issue took place. As the New York Court of Appeals observed, there was nothing to suggest that any of the officers were any longer concerned for their own physical safety. The New York Court of Appeals’ majority declined to express an opinion as to whether there might be an exception to the Miranda rule if the police had been acting to protect the public, because the lower courts in New York had made no factual determination that the police had acted with that motive.
We hold that on these facts there is a “public safety” exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved. In a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer. Undoubtedly most police officers, if placed in Officer Kraft’s position, would act out of a host of different, instinctive, and largely unverifiable motives—their own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect.
Whatever the motivation of individual officers in such a situation, we do not believe that the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety.
The police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.
In such a situation, if the police are required to recite the familiar Miranda warnings before asking the whereabouts of the gun, suspects in Quarles’ position might well be deterred from responding. Procedural safeguards which deter a suspect from responding were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege; when the primary social cost of those added protections is the possibility of fewer convictions, the Miranda majority was willing to bear that cost. Here, had Miranda warnings deterred Quarles from responding to Officer Kraft’s question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting Quarles. Officer Kraft needed an answer to his question not simply to make his case against Quarles but to insure that further danger to the public did not result from the concealment of the gun in a public area.
We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination. We decline to place officers such as Officer Kraft in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.
In recognizing a narrow exception to the Miranda rule in this case, we acknowledge that to some degree we lessen the desirable clarity of that rule. At least in part in order to preserve its clarity, we have over the years refused to sanction attempts to expand our Miranda holding. As we have in other contexts, we recognize here the importance of a workable rule “to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.” But as we have pointed out, we believe that the exception which we recognize today lessens the necessity of that on-the-scene balancing process. The exception will not be difficult for police officers to apply because in each case it will be circumscribed by the exigency which justifies it. We think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.
The facts of this case clearly demonstrate that distinction and an officer’s ability to recognize it. Officer Kraft asked only the question necessary to locate the missing gun before advising respondent of his rights. It was only after securing the loaded revolver and giving the warnings that he continued with investigatory questions about the ownership and place of purchase of the gun. The exception which we recognize today, far from complicating the thought processes and the on-the-scene judgments of police officers, will simply free them to follow their legitimate instincts when confronting situations presenting a danger to the public safety.
We hold that the Court of Appeals in this case erred in excluding the statement, “the gun is over there,” and the gun because of the officer’s failure to read respondent his Miranda rights before attempting to locate the weapon. Accordingly we hold that it also erred in excluding the subsequent statements as illegal fruits of a Miranda violation. We therefore reverse and remand for further proceedings not inconsistent with this opinion.
Justice O’CONNOR, concurring in the judgment in part and dissenting in part.
Today, the Court concludes that overriding considerations of public safety justify the admission of evidence—oral statements and a gun—secured without the benefit of [Miranda] warnings. Were the Court writing from a clean slate, I could agree with its holding. But Miranda is now the law and, in my view, the Court has not provided sufficient justification for departing from it or for blurring its now clear strictures. Accordingly, I would require suppression of the initial statement taken from respondent in this case. On the other hand, nothing in Miranda or the privilege itself requires exclusion of nontestimonial evidence derived from informal custodial interrogation, and I therefore agree with the Court that admission of the gun in evidence is proper.
The Miranda Court itself considered objections akin to those raised by the Court today. In dissent, Justice WHITE protested that the Miranda rules would “operate indiscriminately in all criminal cases, regardless of the severity of the crime or the circumstances involved.” But the Miranda Court would not accept any suggestion that “society’s need for interrogation [could] outweig[h] the privilege.” To that Court, the privilege against self-incrimination was absolute and therefore could not be “abridged.”
Since the time Miranda was decided, the Court has repeatedly refused to bend the literal terms of that decision. To be sure, the Court has been sensitive to the substantial burden the Miranda rules place on local law enforcement efforts, and consequently has refused to extend the decision or to increase its strictures on law enforcement agencies in almost any way. [W]herever an accused has been taken into “custody” and subjected to “interrogation” without warnings, the Court has consistently prohibited the use of his responses for prosecutorial purposes at trial. As a consequence, the “meaning of Miranda has become reasonably clear and law enforcement practices have adjusted to its strictures.”
In my view, a “public safety” exception unnecessarily blurs the edges of the clear line heretofore established and makes Miranda’s requirements more difficult to understand. In some cases, police will benefit because a reviewing court will find that an exigency excused their failure to administer the required warnings. But in other cases, police will suffer because, though they thought an exigency excused their noncompliance, a reviewing court will view the “objective” circumstances differently and require exclusion of admissions thereby obtained. The end result will be a finespun new doctrine on public safety exigencies incident to custodial interrogation, complete with the hair-splitting distinctions that currently plague our Fourth Amendment jurisprudence. “While the rigidity of the prophylactic rules was a principal weakness in the view of dissenters and critics outside the Court, … that rigidity [has also been called a] strength of the decision. It [has] afforded police and courts clear guidance on the manner in which to conduct a custodial investigation: if it was rigid, it was also precise…. [T]his core virtue of Miranda would be eviscerated if the prophylactic rules were freely [ignored] by … courts under the guise of [reinterpreting] Miranda….”
The justification the Court provides for upsetting the equilibrium that has finally been achieved—that police cannot and should not balance considerations of public safety against the individual’s interest in avoiding compulsory testimonial self-incrimination—really misses the critical question to be decided. Miranda has never been read to prohibit the police from asking questions to secure the public safety. Rather, the critical question Miranda addresses is who shall bear the cost of securing the public safety when such questions are asked and answered: the defendant or the State. Miranda, for better or worse, found the resolution of that question implicit in the prohibition against compulsory self-incrimination and placed the burden on the State. When police ask custodial questions without administering the required warnings, Miranda quite clearly requires that the answers received be presumed compelled and that they be excluded from evidence at trial.
The Court concedes, as it must, both that respondent was in “custody” and subject to “interrogation” and that his statement “the gun is over there” was compelled within the meaning of our precedent. In my view, since there is nothing about an exigency that makes custodial interrogation any less compelling, a principled application of Miranda requires that respondent’s statement be suppressed.
Justice MARSHALL, with whom Justice BRENNAN and Justice STEVENS join, dissenting.
The police in this case arrested a man suspected of possessing a firearm in violation of New York law. Once the suspect was in custody and found to be unarmed, the arresting officer initiated an interrogation. Without being advised of his right not to respond, the suspect incriminated himself by locating the gun. The majority concludes that the State may rely on this incriminating statement to convict the suspect of possessing a weapon. I disagree. The arresting officers had no legitimate reason to interrogate the suspect without advising him of his rights to remain silent and to obtain assistance of counsel. By finding on these facts justification for unconsented interrogation, the majority abandons the clear guidelines enunciated in Miranda v. Arizona and condemns the American judiciary to a new era of post hoc inquiry into the propriety of custodial interrogations. More significantly and in direct conflict with this Court’s longstanding interpretation of the Fifth Amendment, the majority has endorsed the introduction of coerced self-incriminating statements in criminal prosecutions. I dissent.
The majority’s entire analysis rests on the factual assumption that the public was at risk during Quarles’ interrogation. This assumption is completely in conflict with the facts as found by New York’s highest court. Before the interrogation began, Quarles had been “reduced to a condition of physical powerlessness.” Contrary to the majority’s speculations, Quarles was not believed to have, nor did he in fact have, an accomplice to come to his rescue. When the questioning began, the arresting officers were sufficiently confident of their safety to put away their guns. As Officer Kraft acknowledged at the suppression hearing, “the situation was under control.” Based on Officer Kraft’s own testimony, the New York Court of Appeals found: “Nothing suggests that any of the officers was by that time concerned for his own physical safety.” The Court of Appeals also determined that there was no evidence that the interrogation was prompted by the arresting officers’ concern for the public’s safety.
The majority attempts to slip away from these unambiguous findings of New York’s highest court by proposing that danger be measured by objective facts rather than the subjective intentions of arresting officers. Though clever, this ploy was anticipated by the New York Court of Appeals: “[T]here is no evidence in the record before us that there were exigent circumstances posing a risk to the public safety….”
The New York court’s conclusion that neither Quarles nor his missing gun posed a threat to the public’s safety is amply supported by the evidence presented at the suppression hearing. Again contrary to the majority’s intimations, no customers or employees were wandering about the store in danger of coming across Quarles’ discarded weapon. Although the supermarket was open to the public, Quarles’ arrest took place during the middle of the night when the store was apparently deserted except for the clerks at the checkout counter. The police could easily have cordoned off the store and searched for the missing gun. Had they done so, they would have found the gun forthwith. The police were well aware that Quarles had discarded his weapon somewhere near the scene of the arrest. As the State acknowledged before the New York Court of Appeals: “After Officer Kraft had handcuffed and frisked the defendant in the supermarket, he knew with a high degree of certainty that the defendant’s gun was within the immediate vicinity of the encounter. He undoubtedly would have searched for it in the carton a few feet away without the defendant having looked in that direction and saying that it was there.”
In this case, there was convincing, indeed almost overwhelming, evidence to support the New York court’s conclusion that Quarles’ hidden weapon did not pose a risk either to the arresting officers or to the public. The majority ignores this evidence and sets aside the factual findings of the New York Court of Appeals. More cynical observers might well conclude that a state court’s findings of fact “deserv[e] a ‘high measure of deference,’” only when deference works against the interests of a criminal defendant.
The majority’s treatment of the legal issues presented in this case is no less troubling than its abuse of the facts. Before today’s opinion, the Court had twice concluded that, under Miranda v. Arizona, police officers conducting custodial interrogations must advise suspects of their rights before any questions concerning the whereabouts of incriminating weapons can be asked. Now the majority departs from these cases and rules that police may withhold Miranda warnings whenever custodial interrogations concern matters of public safety.
The majority contends that the law, as it currently stands, places police officers in a dilemma whenever they interrogate a suspect who appears to know of some threat to the public’s safety. If the police interrogate the suspect without advising him of his rights, the suspect may reveal information that the authorities can use to defuse the threat, but the suspect’s statements will be inadmissible at trial. If, on the other hand, the police advise the suspect of his rights, the suspect may be deterred from responding to the police’s questions, and the risk to the public may continue unabated. According to the majority, the police must now choose between establishing the suspect’s guilt and safeguarding the public from danger.
The majority proposes to eliminate this dilemma by creating an exception to Miranda v. Arizona for custodial interrogations concerning matters of public safety. Under the majority’s exception, police would be permitted to interrogate suspects about such matters before the suspects have been advised of their constitutional rights. Without being “deterred” by the knowledge that they have a constitutional right not to respond, these suspects will be likely to answer the questions. Should the answers also be incriminating, the State would be free to introduce them as evidence in a criminal prosecution. Through this “narrow exception to the Miranda rule,” the majority proposes to protect the public’s safety without jeopardizing the prosecution of criminal defendants. I find in this reasoning an unwise and unprincipled departure from our Fifth Amendment precedents.
This case is illustrative of the chaos the “public-safety” exception will unleash. The circumstances of Quarles’ arrest have never been in dispute. After the benefit of briefing and oral argument, the New York Court of Appeals, as previously noted, concluded that there was “no evidence in the record before us that there were exigent circumstances posing a risk to the public safety.” Upon reviewing the same facts and hearing the same arguments, a majority of this Court has come to precisely the opposite conclusion: “So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety….” If after plenary review two appellate courts so fundamentally differ over the threat to public safety presented by the simple and uncontested facts of this case, one must seriously question how law enforcement officers will respond to the majority’s new rule in the confusion and haste of the real world.
Though unfortunate, the difficulty of administering the “public-safety” exception is not the most profound flaw in the majority’s decision. The majority has lost sight of the fact that Miranda v. Arizona and our earlier custodial-interrogation cases all implemented a constitutional privilege against self-incrimination. The rules established in these cases were designed to protect criminal defendants against prosecutions based on coerced self-incriminating statements. The majority today turns its back on these constitutional considerations, and invites the government to prosecute through the use of what necessarily are coerced statements.
The majority’s error stems from a serious misunderstanding of Miranda v. Arizona and of the Fifth Amendment upon which that decision was based. The majority implies that Miranda consisted of no more than a judicial balancing act in which the benefits of “enlarged protection for the Fifth Amendment privilege” were weighed against “the cost to society in terms of fewer convictions of guilty suspects.” Supposedly because the scales tipped in favor of the privilege against self-incrimination, the Miranda Court erected a prophylactic barrier around statements made during custodial interrogations. The majority misreads Miranda. Though the Miranda dissent prophesized dire consequences, the Miranda Court refused to allow such concerns to weaken the protections of the Constitution.
Whether society would be better off if the police warned suspects of their rights before beginning an interrogation or whether the advantages of giving such warnings would outweigh their costs did not inform the Miranda decision. On the contrary, the Miranda Court was concerned with the proscriptions of the Fifth Amendment, and, in particular, whether the Self-Incrimination Clause permits the government to prosecute individuals based on statements made in the course of custodial interrogations.
In fashioning its “public-safety” exception to Miranda, the majority makes no attempt to deal with the constitutional presumption established by that case. The majority does not argue that police questioning about issues of public safety is any less coercive than custodial interrogations into other matters. The majority’s only contention is that police officers could more easily protect the public if Miranda did not apply to custodial interrogations concerning the public’s safety. But Miranda was not a decision about public safety; it was a decision about coerced confessions. Without establishing that interrogations concerning the public’s safety are less likely to be coercive than other interrogations, the majority cannot endorse the “public-safety” exception and remain faithful to the logic of Miranda v. Arizona.
The majority’s avoidance of the issue of coercion may not have been inadvertent. It would strain credulity to contend that Officer Kraft’s questioning of respondent Quarles was not coercive.
That the application of the “public-safety” exception in this case entailed coercion is no happenstance. The majority’s ratio decidendi is that interrogating suspects about matters of public safety will be coercive. In its cost-benefit analysis, the Court’s strongest argument in favor of a “public-safety” exception to Miranda is that the police would be better able to protect the public’s safety if they were not always required to give suspects their Miranda warnings. The crux of this argument is that, by deliberately withholding Miranda warnings, the police can get information out of suspects who would refuse to respond to police questioning were they advised of their constitutional rights. The “public-safety” exception is efficacious precisely because it permits police officers to coerce criminal defendants into making involuntary statements.
Indeed, in the efficacy of the “public-safety” exception lies a fundamental and constitutional defect. Until today, this Court could truthfully state that the Fifth Amendment is given “broad scope” “[w]here there has been genuine compulsion of testimony.” Coerced confessions were simply inadmissible in criminal prosecutions. The “public-safety” exception departs from this principle by expressly inviting police officers to coerce defendants into making incriminating statements, and then permitting prosecutors to introduce those statements at trial. Though the majority’s opinion is cloaked in the beguiling language of utilitarianism, the Court has sanctioned sub silentio criminal prosecutions based on compelled self-incriminating statements. I find this result in direct conflict with the Fifth Amendment’s dictate that “[n]o person … shall be compelled in any criminal case to be a witness against himself.”
The irony of the majority’s decision is that the public’s safety can be perfectly well protected without abridging the Fifth Amendment. If a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. Such unconsented questioning may take place not only when police officers act on instinct but also when higher faculties lead them to believe that advising a suspect of his constitutional rights might decrease the likelihood that the suspect would reveal life-saving information. If trickery is necessary to protect the public, then the police may trick a suspect into confessing. While the Fourteenth Amendment sets limits on such behavior, nothing in the Fifth Amendment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial.
The majority should not be permitted to elude the Amendment’s absolute prohibition simply by calculating special costs that arise when the public’s safety is at issue. Indeed, were constitutional adjudication always conducted in such an ad hoc manner, the Bill of Rights would be a most unreliable protector of individual liberties.
Notes, Comments, and Questions
In her opinion concurring in part, Justice O’Connor wrote that she would not have excluded Quarles’s gun from evidence, even if his initial statement about the gun had been excluded as she thought Miranda required. Because the majority in this case found that a Miranda Rule exception applied, the Court did not decide whether a Miranda violation could lead to the exclusion of physical evidence found as a result of statements obtained after interrogation. We will review how the Court decided this issue later this semester when we turn out attention to the exclusionary rule.
In Justice Marshall’s dissent, he writes that the majority has permitted the use of “coerced statements” against a criminal defendant. But if the statements were truly the result of coercion, then the Due Process Clause of the Fourteenth Amendment should bar the statements as involuntary. Indeed, the majority opinion states, “In this case we have before us no claim that respondent’s statements were actually compelled by police conduct which overcame his will to resist.” The disconnect between the dissent and majority opinions illustrates a fundamental disagreement about the Miranda doctrine. In the eyes of the dissent, statements obtained in violation of Miranda are “coerced,” and their admission violates the Fifth Amendment. The majority, by contrast, reasons that Miranda merely created a “presumption” that such statements are involuntary, a presumption created by the Court for its convenience, as well as to promote adherence to constitutional commands. A statement that is presumed compelled can be admitted against a defendant in appropriate circumstances—assuming of course that no actual compulsion is found—without offending the Self-Incrimination Clause.
* * *
We have seen that the Court has resisted applying the Miranda Rule to situations where it could impose inconvenience that—at least in the eyes of the majority—is not worth the cost. For example, in Illinois v. Perkins (Chapter 25), the Court declined to require Miranda warnings during jailhouse questioning of suspects by undercover agents. And in Berkemer v. McCarty (Chapter 24), the Court declined to require officers to perform Miranda warnings during routine traffic stops. Similar logic would support a Miranda exception for routine questions asked during the booking of an arrested suspect. Asking the questions furthers important police goals, and most routine questions—such as asking someone’s name and address—should only rarely elicit incriminating information.
If one accepts this logic and supports a “routine booking” exception, one must still decide what questions fall within the exception. The Court addressed that issue in the next case.
Supreme Court of the United States
Pennsylvania v. Inocencio Muniz
Decided June 18, 1990 – 496 U.S. 582
Justice BRENNAN delivered the opinion of the Court, except as to Part III-C.
We must decide in this case whether various incriminating utterances of a drunken-driving suspect, made while performing a series of sobriety tests, constitute testimonial responses to custodial interrogation for purposes of the Self-Incrimination Clause of the Fifth Amendment.
I
During the early morning hours of November 30, 1986, a patrol officer spotted respondent Inocencio Muniz and a passenger parked in a car on the shoulder of a highway. When the officer inquired whether Muniz needed assistance, Muniz replied that he had stopped the car so he could urinate. The officer smelled alcohol on Muniz’s breath and observed that Muniz’s eyes were glazed and bloodshot and his face was flushed. The officer then directed Muniz to remain parked until his condition improved, and Muniz gave assurances that he would do so. But as the officer returned to his vehicle, Muniz drove off. After the officer pursued Muniz down the highway and pulled him over, the officer asked Muniz to perform three standard field sobriety tests: a “horizontal gaze nystagmus” test, a “walk and turn” test, and a “one leg stand” test. Muniz performed these tests poorly, and he informed the officer that he had failed the tests because he had been drinking.
The patrol officer arrested Muniz and transported him to the West Shore facility of the Cumberland County Central Booking Center. Following its routine practice for receiving persons suspected of driving while intoxicated, the booking center videotaped the ensuing proceedings. Muniz was informed that his actions and voice were being recorded, but he was not at this time (nor had he been previously) advised of his rights under Miranda v. Arizona. Officer Hosterman first asked Muniz his name, address, height, weight, eye color, date of birth, and current age. He responded to each of these questions, stumbling over his address and age. The officer then asked Muniz, “Do you know what the date was of your sixth birthday?” After Muniz offered an inaudible reply, the officer repeated, “When you turned six years old, do you remember what the date was?” Muniz responded, “No, I don’t.”
Officer Hosterman next requested Muniz to perform each of the three sobriety tests that Muniz had been asked to perform earlier during the initial roadside stop. The videotape reveals that his eyes jerked noticeably during the gaze test, that he did not walk a very straight line, and that he could not balance himself on one leg for more than several seconds. During the latter two tests, he did not complete the requested verbal counts from 1 to 9 and from 1 to 30. Moreover, while performing these tests, Muniz “attempted to explain his difficulties in performing the various tasks, and often requested further clarification of the tasks he was to perform.”
Finally, Officer Deyo asked Muniz to submit to a breathalyzer test designed to measure the alcohol content of his expelled breath. Officer Deyo read to Muniz the Commonwealth’s Implied Consent Law and explained that under the law his refusal to take the test would result in automatic suspension of his driver’s license for one year. Muniz asked a number of questions about the law, commenting in the process about his state of inebriation. Muniz ultimately refused to take the breath test. At this point, Muniz was for the first time advised of his Miranda rights. Muniz then signed a statement waiving his rights and admitted in response to further questioning that he had been driving while intoxicated.
Both the video and audio portions of the videotape were admitted into evidence at Muniz’ bench trial, along with the arresting officer’s testimony that Muniz failed the roadside sobriety tests and made incriminating remarks at that time. Muniz was convicted of driving under the influence of alcohol. Muniz filed a motion for a new trial, contending that the court should have excluded the testimony relating to the field sobriety tests and the videotape taken at the booking center “because they were incriminating and completed prior to [Muniz’s] receiving his Miranda warnings.” The trial court denied the motion, holding that “‘requesting a driver, suspected of driving under the influence of alcohol, to perform physical tests or take a breath analysis does not violate [his] privilege against self-incrimination because [the] evidence procured is of a physical nature rather than testimonial, and therefore no Miranda warnings are required.’”
On appeal, the Superior Court of Pennsylvania reversed. After the Pennsylvania Supreme Court denied the Commonwealth’s application for review, we granted certiorari.
II
This case implicates both the “testimonial” and “compulsion” components of the privilege against self-incrimination in the context of pretrial questioning. Because Muniz was not advised of his Miranda rights until after the videotaped proceedings at the booking center were completed, any verbal statements that were both testimonial in nature and elicited during custodial interrogation should have been suppressed. We focus first on Muniz’s responses to the initial informational questions, then on his questions and utterances while performing the physical dexterity and balancing tests, and finally on his questions and utterances surrounding the breathalyzer test.
III
In the initial phase of the recorded proceedings, Officer Hosterman asked Muniz his name, address, height, weight, eye color, date of birth, current age, and the date of his sixth birthday. Both the delivery and content of Muniz’s answers were incriminating. As the state court found, “Muniz’s videotaped responses … certainly led the finder of fact to infer that his confusion and failure to speak clearly indicated a state of drunkenness that prohibited him from safely operating his vehicle.” The Commonwealth argues, however, that admission of Muniz’s answers to these questions does not contravene Fifth Amendment principles because Muniz’s statement regarding his sixth birthday was not “testimonial” and his answers to the prior questions were not elicited by custodial interrogation. We consider these arguments in turn.
A
We agree with the Commonwealth’s contention that Muniz’s answers are not rendered inadmissible by Miranda merely because the slurred nature of his speech was incriminating. The physical inability to articulate words in a clear manner due to “the lack of muscular coordination of his tongue and mouth,” is not itself a testimonial component of Muniz’s responses to Officer Hosterman’s introductory questions. [W]e [have] held that “the privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.” [A] person suspected of driving while intoxicated [can] be forced to provide a blood sample, because that sample [is] “real or physical evidence” outside the scope of the privilege and the sample [is] obtained in a manner by which “[p]etitioner’s testimonial capacities were in no way implicated.”
We have since applied the distinction between “real or physical” and “testimonial” evidence in other contexts where the evidence could be produced only through some volitional act on the part of the suspect. [W]e agree with the Commonwealth that any slurring of speech and other evidence of lack of muscular coordination revealed by Muniz’s responses to Officer Hosterman’s direct questions constitute nontestimonial components of those responses. Requiring a suspect to reveal the physical manner in which he articulates words, like requiring him to reveal the physical properties of the sound produced by his voice does not, without more, compel him to provide a “testimonial” response for purposes of the privilege.
B
This does not end our inquiry, for Muniz’s answer to the sixth birthday question was incriminating, not just because of his delivery, but also because of his answer’s content; the trier of fact could infer from Muniz’s answer (that he did not know the proper date) that his mental state was confused. The Commonwealth and the United States as amicus curiae argue that this incriminating inference does not trigger the protections of the Fifth Amendment privilege because the inference concerns “the physiological functioning of [Muniz’s] brain,” which is asserted to be every bit as “real or physical” as the physiological makeup of his blood and the timbre of his voice.
But this characterization addresses the wrong question; that the “fact” to be inferred might be said to concern the physical status of Muniz’s brain merely describes the way in which the inference is incriminating. The correct question for present purposes is whether the incriminating inference of mental confusion is drawn from a testimonial act or from physical evidence. In Schmerber [v. California, 384 U.S. 757 (1966)], for example, we held that the police could compel a suspect to provide a blood sample in order to determine the physical makeup of his blood and thereby draw an inference about whether he was intoxicated. This compulsion was outside of the Fifth Amendment’s protection, not simply because the evidence concerned the suspect’s physical body, but rather because the evidence was obtained in a manner that did not entail any testimonial act on the part of the suspect. In contrast, had the police instead asked the suspect directly whether his blood contained a high concentration of alcohol, his affirmative response would have been testimonial even though it would have been used to draw the same inference concerning his physiology. In this case, the question is not whether a suspect’s “impaired mental faculties” can fairly be characterized as an aspect of his physiology, but rather whether Muniz’s response to the sixth birthday question that gave rise to the inference of such an impairment was testimonial in nature.
Th[e] definition of testimonial evidence reflects an awareness of the historical abuses against which the privilege against self-incrimination was aimed. “Historically, the privilege was intended to prevent the use of legal compulsion to extract from the accused a sworn communication of facts which would incriminate him. Such was the process of the ecclesiastical courts and the Star Chamber—the inquisitorial method of putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source. The major thrust of the policies undergirding the privilege is to prevent such compulsion.” At its core, the privilege reflects our fierce “‘unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt’” that defined the operation of the Star Chamber, wherein suspects were forced to choose between revealing incriminating private thoughts and forsaking their oath by committing perjury.
We need not explore the outer boundaries of what is “testimonial” today, for our decision flows from the concept’s core meaning. Because the privilege was designed primarily to prevent “a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality,” it is evident that a suspect is “compelled … to be a witness against himself” at least whenever he must face the modern-day analog of the historic trilemma—either during a criminal trial where a sworn witness faces the identical three choices, or during custodial interrogation where, as we explained in Miranda, the choices are analogous and hence raise similar concerns. Whatever else it may include, therefore, the definition of “testimonial” evidence [] must encompass all responses to questions that, if asked of a sworn suspect during a criminal trial, could place the suspect in the “cruel trilemma.” This conclusion is consistent with our recognition [] that “[t]he vast majority of verbal statements thus will be testimonial” because “[t]here are very few instances in which a verbal statement, either oral or written, will not convey information or assert facts.” Whenever a suspect is asked for a response requiring him to communicate an express or implied assertion of fact or belief, the suspect confronts the “trilemma” of truth, falsity, or silence, and hence the response (whether based on truth or falsity) contains a testimonial component.
[T]he sixth birthday question in this case required a testimonial response. When Officer Hosterman asked Muniz if he knew the date of his sixth birthday and Muniz, for whatever reason, could not remember or calculate that date, he was confronted with the trilemma. By hypothesis, the inherently coercive environment created by the custodial interrogation precluded the option of remaining silent. Muniz was left with the choice of incriminating himself by admitting that he did not then know the date of his sixth birthday, or answering untruthfully by reporting a date that he did not then believe to be accurate (an incorrect guess would be incriminating as well as untruthful). The content of his truthful answer supported an inference that his mental faculties were impaired, because his assertion (he did not know the date of his sixth birthday) was different from the assertion (he knew the date was [correct date]) that the trier of fact might reasonably have expected a lucid person to provide. Hence, the incriminating inference of impaired mental faculties stemmed, not just from the fact that Muniz slurred his response, but also from a testimonial aspect of that response.
The state court held that the sixth birthday question constituted an unwarned interrogation for purposes of the privilege against self-incrimination and that Muniz’s answer was incriminating. The Commonwealth does not question either conclusion. Therefore, because we conclude that Muniz’s response to the sixth birthday question was testimonial, the response should have been suppressed.
C
The Commonwealth argues that the seven questions asked by Officer Hosterman just prior to the sixth birthday question—regarding Muniz’s name, address, height, weight, eye color, date of birth, and current age—did not constitute custodial interrogation as we have defined the term in Miranda and subsequent cases. In Miranda, the Court referred to “interrogation” as actual “questioning initiated by law enforcement officers.” We have since clarified that definition, finding that the “goals of the Miranda safeguards could be effectuated if those safeguards extended not only to express questioning, but also to ‘its functional equivalent.’” [T]he Court [has] defined the phrase “functional equivalent” of express questioning to include “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” However, “[a]ny knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining” what the police reasonably should have known. Thus, custodial interrogation for purposes of Miranda includes both express questioning and words or actions that, given the officer’s knowledge of any special susceptibilities of the suspect, the officer knows or reasonably should know are likely to “have … the force of a question on the accused,” and therefore be reasonably likely to elicit an incriminating response.
We disagree with the Commonwealth’s contention that Officer Hosterman’s first seven questions regarding Muniz’s name, address, height, weight, eye color, date of birth, and current age do not qualify as custodial interrogation as we define[] the term merely because the questions were not intended to elicit information for investigatory purposes. As explained above, the [Rhode Island v.] Innis test focuses primarily upon “the perspective of the suspect.” We agree with amicus United States, however, that Muniz’s answers to these first seven questions are nonetheless admissible because the questions fall within a “routine booking question” exception which exempts from Miranda’s coverage questions to secure the “‘biographical data necessary to complete booking or pretrial services.’” The state court found that the first seven questions were “requested for record-keeping purposes only,” and therefore the questions appear reasonably related to the police’s administrative concerns. In this context, therefore, the first seven questions asked at the booking center fall outside the protections of Miranda and the answers thereto need not be suppressed.
IV
During the second phase of the videotaped proceedings, Officer Hosterman asked Muniz to perform the same three sobriety tests that he had earlier performed at roadside prior to his arrest: the “horizontal gaze nystagmus” test, the “walk and turn” test, and the “one leg stand” test. While Muniz was attempting to comprehend Officer Hosterman’s instructions and then perform the requested sobriety tests, Muniz made several audible and incriminating statements. Muniz argued to the state court that both the videotaped performance of the physical tests themselves and the audiorecorded verbal statements were introduced in violation of Miranda.
The court refused to suppress the videotaped evidence of Muniz’s paltry performance on the physical sobriety tests, reasoning that “‘[r]equiring a driver to perform physical [sobriety] tests … does not violate the privilege against self-incrimination because the evidence procured is of a physical nature rather than testimonial.’” With respect to Muniz’s verbal statements, however, the court concluded that “none of Muniz’s utterances were spontaneous, voluntary verbalizations,” and because they were “elicited before Muniz received his Miranda warnings, they should have been excluded as evidence.”
We disagree. Officer Hosterman’s dialogue with Muniz concerning the physical sobriety tests consisted primarily of carefully scripted instructions as to how the tests were to be performed. These instructions were not likely to be perceived as calling for any verbal response and therefore were not “words or actions” constituting custodial interrogation, with two narrow exceptions not relevant here. The dialogue also contained limited and carefully worded inquiries as to whether Muniz understood those instructions, but these focused inquiries were necessarily “attendant to” the police procedure held by the court to be legitimate. Hence, Muniz’s incriminating utterances during this phase of the videotaped proceedings were “voluntary” in the sense that they were not elicited in response to custodial interrogation.
Similarly, we conclude that Miranda does not require suppression of the statements Muniz made when asked to submit to a breathalyzer examination. Officer Deyo read Muniz a prepared script explaining how the test worked, the nature of Pennsylvania’s Implied Consent Law, and the legal consequences that would ensue should he refuse. Officer Deyo then asked Muniz whether he understood the nature of the test and the law and whether he would like to submit to the test. Muniz asked Officer Deyo several questions concerning the legal consequences of refusal, which Deyo answered directly, and Muniz then commented upon his state of inebriation. After offering to take the test only after waiting a couple of hours or drinking some water, Muniz ultimately refused.
We believe that Muniz’s statements were not prompted by an interrogation within the meaning of Miranda, and therefore the absence of Miranda warnings does not require suppression of these statements at trial. As did Officer Hosterman when administering the three physical sobriety tests, Officer Deyo carefully limited her role to providing Muniz with relevant information about the breathalyzer test and the Implied Consent Law. She questioned Muniz only as to whether he understood her instructions and wished to submit to the test. These limited and focused inquiries were necessarily “attendant to” the legitimate police procedure and were not likely to be perceived as calling for any incriminating response.
V
We agree with the state court’s conclusion that Miranda requires suppression of Muniz’s response to the question regarding the date of his sixth birthday, but we do not agree that the entire audio portion of the videotape must be suppressed. Accordingly, the court’s judgment reversing Muniz’s conviction is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
Chief Justice REHNQUIST, with whom Justice WHITE, Justice BLACKMUN, and Justice STEVENS join, concurring in part, concurring in the result in part, and dissenting in part.
I join Parts I, II, III-A, and IV of the Court’s opinion. In addition, although I agree with the conclusion in Part III-C that the seven “booking” questions should not be suppressed, I do so for a reason different from that of Justice BRENNAN. I dissent from the Court’s conclusion that Muniz’s response to the “sixth birthday question” should have been suppressed.
The Court holds that the sixth birthday question Muniz was asked required a testimonial response, and that its admission at trial therefore violated Muniz’s privilege against compulsory self-incrimination.
As an assumption about human behavior, this statement is wrong. Muniz would no more have felt compelled to fabricate a false date than one who cannot read the letters on an eye chart feels compelled to fabricate false letters; nor does a wrong guess call into question a speaker’s veracity. The Court’s statement is also a flawed predicate on which to base its conclusion that Muniz’s answer to this question was “testimonial” for purposes of the Fifth Amendment.
The sixth birthday question here was an effort on the part of the police to check how well Muniz was able to do a simple mathematical exercise. Indeed, had the question related only to the date of his birth, it presumably would have come under the “booking exception” to Miranda v. Arizona. The Court holds in this very case that Muniz may be required to perform a “horizontal gaze nystagmus” test, the “walk and turn” test, and the “one leg stand” test, all of which are designed to test a suspect’s physical coordination. If the police may require Muniz to use his body in order to demonstrate the level of his physical coordination, there is no reason why they should not be able to require him to speak or write in order to determine his mental coordination. That was all that was sought here. Since it was permissible for the police to extract and examine a sample of Schmerber’s blood to determine how much that part of his system had been affected by alcohol, I see no reason why they may not examine the functioning of Muniz’s mental processes for the same purpose.
Surely if it were relevant, a suspect might be asked to take an eye examination in the course of which he might have to admit that he could not read the letters on the third line of the chart. At worst, he might utter a mistaken guess. Muniz likewise might have attempted to guess the correct response to the sixth birthday question instead of attempting to calculate the date or answer “I don’t know.” But the potential for giving a bad guess does not subject the suspect to the truth-falsity-silence predicament that renders a response testimonial and, therefore, within the scope of the Fifth Amendment privilege.
For substantially the same reasons, Muniz’s responses to the videotaped “booking” questions were not testimonial and do not warrant application of the privilege. Thus, it is unnecessary to determine whether the questions fall within the “routine booking question” exception to Miranda Justice BRENNAN recognizes.
I would reverse in its entirety the judgment of the Superior Court of Pennsylvania. But given the fact that five members of the Court agree that Muniz’s response to the sixth birthday question should have been suppressed, I agree that the judgment of the Superior Court should be vacated so that, on remand, the court may consider whether admission of the response at trial was harmless error.
Notes, Comments, and Questions
The Muniz majority referred to the “Star Chamber,” an English court that apparently took its name from images of stars decorating the ceiling of the room in which it met. Its history is complicated. For purposes of this course, it will be sufficient for students to know that the term “Star Chamber”—when used by American judges—generally refers to a court with unfair procedures that can be compared to those of the Inquisition. In particular, in America the court’s name is strongly associated with compulsory self-incrimination. For a detailed discussion of the origins of the privilege against self-incrimination in England, see John H. Langbein, The Historical Origins of the Privilege Against Self-Incrimination at Common Law, 92 Mich. L. Rev. 1047 (1994).
This chapter concludes our main unit on the Miranda Rule, to which we will return briefly when studying the exclusionary rule. In our next two chapters, we will examine the constraints on interrogations imposed by the Court pursuant to the Assistance of Counsel Clause of the Sixth Amendment. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/03%3A_Interrogations/3.08%3A_Chapter_28_-_The_Miranda_Rule-_Exceptions.txt |
INTERROGATIONS
The Sixth Amendment: Massiah Doctrine & Waiver of Rights
In Massiah v. United States, the Court held that the petitioner was denied the protections of the Sixth Amendment’s guarantee of assistance of counsel when prosecutors used his own words against him at trial, words which federal agents had deliberately elicited from him in the absence of his counsel after he had been indicted. Further, we read for our last chapter that indictment is not the only way that the right to counsel can “attach”—other formal proceedings will do. The Massiah Court did not define what it meant for government agents to “deliberately elicit” incriminating statements. We turn to that question in this chapter.
After reviewing the leading cases on deliberate elicitation, we will turn to the rules governing waiver of rights under the Sixth Amendment Assistance of Counsel Clause.
Supreme Court of the United States
United States v. Billy Gale Henry
Decided June 16, 1980 – 447 U.S. 264
Mr. Chief Justice BURGER delivered the opinion of the Court.
We granted certiorari to consider whether respondent’s Sixth Amendment right to the assistance of counsel was violated by the admission at trial of incriminating statements made by respondent to his cellmate, an undisclosed Government informant, after indictment and while in custody.
I
The Janaf Branch of the United Virginia Bank/Seaboard National in Norfolk, Va., was robbed in August 1972. Witnesses saw two men wearing masks and carrying guns enter the bank while a third man waited in the car. No witnesses were able to identify respondent Henry as one of the participants. About an hour after the robbery, the getaway car was discovered. Inside was found a rent receipt signed by one “Allen R. Norris” and a lease, also signed by Norris, for a house in Norfolk. Two men, who were subsequently convicted of participating in the robbery, were arrested at the rented house. Discovered with them were the proceeds of the robbery and the guns and masks used by the gunman.
Government agents traced the rent receipt to Henry; on the basis of this information, Henry was arrested in Atlanta, Ga., in November 1972. Two weeks later he was indicted for armed robbery. He was held pending trial in the Norfolk city jail. Counsel was appointed on November 27.
On November 21, 1972, shortly after Henry was incarcerated, Government agents working on the Janaf robbery contacted one Nichols, an inmate at the Norfolk city jail, who for some time prior to this meeting had been engaged to provide confidential information to the Federal Bureau of Investigation as a paid informant. Nichols was then serving a sentence on local forgery charges. The record does not disclose whether the agent contacted Nichols specifically to acquire information about Henry or the Janaf robbery.
Nichols informed the agent that he was housed in the same cellblock with several federal prisoners awaiting trial, including Henry. The agent told him to be alert to any statements made by the federal prisoners, but not to initiate any conversation with or question Henry regarding the bank robbery. In early December, after Nichols had been released from jail, the agent again contacted Nichols, who reported that he and Henry had engaged in conversation and that Henry had told him about the robbery of the Janaf bank. Nichols was paid for furnishing the information.
When Henry was tried in March 1973, an agent of the Federal Bureau of Investigation testified concerning the events surrounding the discovery of the rental slip and the evidence uncovered at the rented house. Other witnesses also connected Henry to the rented house, including the rental agent who positively identified Henry as the “Allen R. Norris” who had rented the house and had taken the rental receipt described earlier. A neighbor testified that prior to the robbery she saw Henry at the rented house with John Luck, one of the two men who had by the time of Henry’s trial been convicted for the robbery. In addition, palm prints found on the lease agreement matched those of Henry.
Nichols testified at trial that he had “an opportunity to have some conversations with Mr. Henry while he was in the jail,” and that Henry told him that on several occasions he had gone to the Janaf Branch to see which employees opened the vault. Nichols also testified that Henry described to him the details of the robbery and stated that the only evidence connecting him to the robbery was the rental receipt. The jury was not informed that Nichols was a paid Government informant.
On the basis of this testimony, Henry was convicted of bank robbery and sentenced to a term of imprisonment of 25 years. On appeal he raised no Sixth Amendment claims. His conviction was affirmed and his petition to this Court for a writ of certiorari was denied.
On August 28, 1975, Henry moved to vacate his sentence. At this stage, he stated that he had just learned that Nichols was a paid Government informant and alleged that he had been intentionally placed in the same cell with Nichols so that Nichols could secure information about the robbery. Thus, Henry contended that the introduction of Nichols’ testimony violated his Sixth Amendment right to the assistance of counsel. The District Court denied the motion without a hearing. The Court of Appeals, however, reversed and remanded for an evidentiary inquiry into “whether the witness [Nichols] was acting as a government agent during his interviews with Henry.”
On remand, the District Court requested affidavits from the Government agents. An affidavit was submitted describing the agent’s relationship with Nichols and relating the following conversation:
“I recall telling Nichols at this time to be alert to any statements made by these individuals [the federal prisoners] regarding the charges against them. I specifically recall telling Nichols that he was not to question Henry or these individuals about the charges against them, however, if they engaged him in conversation or talked in front of him, he was requested to pay attention to their statements. I recall telling Nichols not to initiate any conversations with Henry regarding the bank robbery charges against Henry, but that if Henry initiated the conversations with Nichols, I requested Nichols to pay attention to the information furnished by Henry.”
The agent’s affidavit also stated that he never requested anyone affiliated with the Norfolk city jail to place Nichols in the same cell with Henry.
The District Court again denied Henry’s motion, concluding that Nichols’ testimony at trial did not violate Henry’s Sixth Amendment right to counsel. The Court of Appeals reversed and remanded, holding that the actions of the Government impaired the Sixth Amendment rights of the defendant under Massiah v. United States. The court noted that Nichols had engaged in conversation with Henry and concluded that if by association, by general conversation, or both, Nichols had developed a relationship of trust and confidence with Henry such that Henry revealed incriminating information, this constituted interference with the right to the assistance of counsel under the Sixth Amendment.
II
This Court has scrutinized postindictment confrontations between Government agents and the accused to determine whether they are “critical stages” of the prosecution at which the Sixth Amendment right to the assistance of counsel attaches. The present case involves incriminating statements made by the accused to an undisclosed and undercover Government informant while in custody and after indictment. The Government characterizes Henry’s incriminating statements as voluntary and not the result of any affirmative conduct on the part of Government agents to elicit evidence. From this, the Government argues that Henry’s rights were not violated, even assuming the Sixth Amendment applies to such surreptitious confrontations; in short, it is contended that the Government has not interfered with Henry’s right to counsel.
This Court first applied the Sixth Amendment to postindictment communications between the accused and agents of the Government in Massiah v. United States. The question here is whether under the facts of this case a Government agent “deliberately elicited” incriminating statements from Henry within the meaning of Massiah. Three factors are important. First, Nichols was acting under instructions as a paid informant for the Government; second, Nichols was ostensibly no more than a fellow inmate of Henry; and third, Henry was in custody and under indictment at the time he was engaged in conversation by Nichols.
The Court of Appeals viewed the record as showing that Nichols deliberately used his position to secure incriminating information from Henry when counsel was not present and held that conduct attributable to the Government. Nichols had been a paid Government informant for more than a year; moreover, the FBI agent was aware that Nichols had access to Henry and would be able to engage him in conversations without arousing Henry’s suspicion. The arrangement between Nichols and the agent was on a contingent-fee basis; Nichols was to be paid only if he produced useful information. This combination of circumstances is sufficient to support the Court of Appeals’ determination. Even if the agent’s statement that he did not intend that Nichols would take affirmative steps to secure incriminating information is accepted, he must have known that such propinquity likely would lead to that result.
The Government argues that the federal agents instructed Nichols not to question Henry about the robbery. Yet according to his own testimony, Nichols was not a passive listener; rather, he had “some conversations with Mr. Henry” while he was in jail and Henry’s incriminatory statements were “the product of this conversation.” While affirmative interrogation, absent waiver, would certainly satisfy Massiah, we are not persuaded, as the Government contends that Brewer v. Williams modified Massiah’s “deliberately elicited” test. In Massiah, no inquiry was made as to whether Massiah or his codefendant first raised the subject of the crime under investigation.
It is quite a different matter when the Government uses undercover agents to obtain incriminating statements from persons not in custody but suspected of criminal activity prior to the time charges are filed. But the Fourth and Fifth Amendment claims [possible] in those [situations] are not relevant to the inquiry under the Sixth Amendment here—whether the Government has interfered with the right to counsel of the accused by “deliberately eliciting” incriminating statements. Our holding today does not modify [Fourth or Fifth Amendment jurisprudence on this issue].
It is undisputed that Henry was unaware of Nichols’ role as a Government informant. The government argues that this Court should apply a less rigorous standard under the Sixth Amendment where the accused is prompted by an undisclosed undercover informant than where the accused is speaking in the hearing of persons he knows to be Government officers. That line of argument, however, seeks to infuse Fifth Amendment concerns against compelled self-incrimination into the Sixth Amendment protection of the right to the assistance of counsel. An accused speaking to a known Government agent is typically aware that his statements may be used against him. The adversary positions at that stage are well established; the parties are then “arms’ length” adversaries.
When the accused is in the company of a fellow inmate who is acting by prearrangement as a Government agent, the same cannot be said. Conversation stimulated in such circumstances may elicit information that an accused would not intentionally reveal to persons known to be Government agents. Indeed, the Massiah Court noted that if the Sixth Amendment “is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse.” The Court pointedly observed that Massiah was more seriously imposed upon because he did not know that his codefendant was a Government agent.
Moreover, the concept of a knowing and voluntary waiver of Sixth Amendment rights does not apply in the context of communications with an undisclosed undercover informant acting for the Government. In that setting, Henry, being unaware that Nichols was a Government agent expressly commissioned to secure evidence, cannot be held to have waived his right to the assistance of counsel.
Finally Henry’s incarceration at the time he was engaged in conversation by Nichols is also a relevant factor.1 [T]he mere fact of custody imposes pressures on the accused; confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover Government agents. The Court of Appeals determined that on this record the incriminating conversations between Henry and Nichols were facilitated by Nichols’ conduct and apparent status as a person sharing a common plight. That Nichols had managed to gain the confidence of Henry, as the Court of Appeals determined, is confirmed by Henry’s request that Nichols assist him in his escape plans when Nichols was released from confinement.
Under the strictures of the Court’s holdings on the exclusion of evidence, we conclude that the Court of Appeals did not err in holding that Henry’s statements to Nichols should not have been admitted at trial. By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, the Government violated Henry’s Sixth Amendment right to counsel. This is not a case where, in Justice Cardozo’s words, “the constable … blundered”; rather, it is one where the “constable” planned an impermissible interference with the right to the assistance of counsel. The judgment of the Court of Appeals for the Fourth Circuit is [a]ffirmed.
Mr. Justice POWELL, concurring.
The rule of Massiah serves the salutary purpose of preventing police interference with the relationship between a suspect and his counsel once formal proceedings have been initiated. But Massiah does not prohibit the introduction of spontaneous statements that are not elicited by governmental action. Thus, the Sixth Amendment is not violated when a passive listening device collects, but does not induce, incriminating comments. Similarly, the mere presence of a jailhouse informant who had been instructed to overhear conversations and to engage a criminal defendant in some conversations would not necessarily be unconstitutional. In such a case, the question would be whether the informant’s actions constituted deliberate and “surreptitious interrogatio[n]” of the defendant. If they did not, then there would be no interference with the relationship between client and counsel.
On balance [] I accept the view of the Court of Appeals and of the Court that the record adequately demonstrates the existence of a Massiah violation. I could not join the Court’s opinion if it held that the mere presence or incidental conversation of an informant in a jail cell would violate Massiah. To demonstrate an infringement of the Sixth Amendment, a defendant must show that the government engaged in conduct that, considering all of the circumstances, is the functional equivalent of interrogation.
Because I understand that the decision today rests on a conclusion that this informant deliberately elicited incriminating information by such conduct, I join the opinion of the Court.
Mr. Justice BLACKMUN, with whom Mr. Justice WHITE joins, dissenting.
In this case the Court, I fear, cuts loose from the moorings of Massiah v. United States and overlooks or misapplies significant facts to reach a result that is not required by the Sixth Amendment, by established precedent, or by sound policy. Because I view the principles of Massiah and the facts of this case differently than the Court does, I dissent.
Massiah mandates exclusion only if a federal agent “deliberately elicited” statements from the accused in the absence of counsel. The word “deliberately” denotes intent. Massiah ties this intent to the act of elicitation, that is, to conduct that draws forth a response. Thus Massiah, by its own terms, covers only action undertaken with the specific intent to evoke an inculpatory disclosure.
Faced with Agent Coughlin’s unequivocal expression of an intent not to elicit statements from respondent Henry, but merely passively to receive them, the Court, in its decision to affirm the judgment of the Court of Appeals, has no choice but to depart from the natural meaning of the Massiah formulation. [W]hile claiming to retain the “deliberately elicited” test, the Court really forges a new test that saps the word “deliberately” of all significance. The Court’s extension of Massiah would cover even a “negligent” triggering of events resulting in reception of disclosures. This approach, in my view, is unsupported and unwise.
The unifying theme of Massiah cases [] is the presence of deliberate, designed, and purposeful tactics, that is, the agent’s use of an investigatory tool with the specific intent of extracting information in the absence of counsel. Thus, the Court’s “likely to induce” test fundamentally restructures Massiah. Even if the agent engages in no “overreaching,” and believes his actions to be wholly innocent and passive, evidence he comes by must be excluded if a court, with the convenient benefit of 20/20 hindsight, finds it likely that the agent’s actions would induce the statements.
For several reasons, I believe that the Court’s revamping of Massiah abrogates sound judicial policy. First, its test will significantly broaden Sixth Amendment exclusion; yet, as THE CHIEF JUSTICE has stressed before, the “high price society pays for such a drastic remedy” as exclusion of indisputably reliable evidence in criminal trials cannot be denied. Second, I think the Court’s approach fails to appreciate fully and to accommodate adequately the “value” and the “unfortunate necessity of undercover work.” Third, I find it significant that the proffered statements are unquestionably voluntary. Fourth, the Court condemns and punishes police conduct that I do not find culpable. Fifth, at least absent an active, orchestrated ruse, I have great difficulty perceiving how canons of fairness are violated when the Government uses statements flowing from a “wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.”
Finally, I note the limits, placed in other Sixth Amendment cases, of providing counsel to counterbalance prosecutorial expertise and to aid defendants faced with complex and unfamiliar proceedings. While not out of line with the Court’s prior right-to-counsel cases, Massiah certainly is the decision in which Sixth Amendment protections have been extended to their outermost point. I simply do not perceive any good reason to give Massiah the expansion it receives in this case.
In my view, the Court not only missteps in forging a new Massiah test; it proceeds to misapply the very test it has created. The new test requires a showing that the agent created a situation “likely to induce” the production of incriminatory remarks, and that the informant in fact “prompted” the defendant. Even accepting the most capacious reading of both this language and the facts, I believe that neither prong of the Court’s test is satisfied.
In holding that Coughlin’s actions were likely to induce Henry’s statements, the Court relies on three facts: a contingent-fee arrangement; Henry’s assumption that Nichols was just a cellmate; and Henry’s incarceration.
The Court states: “The arrangement between Nichols and the agent was on a contingent-fee basis; Nichols was to be paid only if he produced useful information.” The District Court, however, made no such finding, and I am unconvinced that the evidence of record establishes such an understanding.
The Court also emphasizes that Henry was “unaware that Nichols was a Government agent.” One might properly assign this factor some importance, were it not for Brewer v. Williams (Chapter 29). In that case, the Court explicitly held that the fact “[t]hat the incriminating statements were elicited surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant.” The Court’s teeter-tottering with this factor in Massiah analysis can only induce confusion.
It merits emphasis that the court’s resurrection of the unawareness factor is indispensable to its holding. For, in Brewer, substantial contact and conversation with a confined defendant preceded delivery of the “Christian burial speech.” Yet the Court clearly deemed the speech critical in finding a Massiah violation; it thus made clear that mere “association” and “general conversation” did not suffice to bring Massiah into play. Since nothing more transpired here, principled application of Brewer mandates reversal of the judgment in this case.
Finally, the Court notes that Henry was incarcerated when he made his statements to Nichols. The Court’s emphasis of the “subtle influences” exerted by custody, however, is itself too subtle for me. This is not a case of a custodial encounter with police, in which the Government’s display of power might overcome the free will of the accused. The relationship here was “social” and relaxed. Henry did not suspect that Nichols was connected with the FBI. Moreover, even assuming that “subtle influences” might encourage a detainee to talk about his crime, there are certainly counter-balances of at least equal weight. Since, in jail, “official surveillance has traditionally been the order of the day,” and a jailmate has obvious incentives to assist authorities, one may expect a detainee to act with corresponding circumspection.
All Members of the Court agree that Henry’s statements were properly admitted if Nichols did not “prompt” him. The record, however, gives no indication that Nichols “stimulated” Henry’s remarks with “affirmative steps to secure incriminating information.” Certainly the known facts reveal nothing more than “a jailhouse informant who had been instructed to overhear conversations and to engage a criminal defendant in some conversations.” Indeed, to the extent the record says anything at all, it supports the inference that it was Henry, not Nichols, who “engaged” the other “in some conversations,” and who was the moving force behind any mention of the crime. I cannot believe that Massiah requires exclusion when a cellmate previously unknown to the defendant and asked only to keep his ears open says: “It’s a nice day,” and the defendant responds: “It would be nicer if I hadn’t robbed that bank.” The Court of Appeals, however, found it necessary to swallow that bitter pill in order to decide this case the way it did, and this Court does not show that anything more transpired.
In sum, I think this is an unfortunate decision, which disregards precedent and stretches to the breaking point a virtually silent record. Whatever the bounds of Massiah, that case does not justify exclusion of the proof challenged here.
Mr. Justice REHNQUIST, dissenting.
The Court today concludes that the Government through the use of an informant “deliberately elicited” information from respondent after formal criminal proceedings had begun, and thus the statements made by respondent to the informant are inadmissible because counsel was not present. The exclusion of respondent’s statements has no relationship whatsoever to the reliability of the evidence, and it rests on a prophylactic application of the Sixth Amendment right to counsel that in my view entirely ignores the doctrinal foundation of that right. The Court’s ruling is based on Massiah v. United States, which held that a postindictment confrontation between the accused and his accomplice, who had turned State’s evidence and was acting under the direction of the Government, was a “critical” stage of the criminal proceedings at which the Sixth Amendment right to counsel attached. While the decision today sets forth the factors that are “important” in determining whether there has been a Massiah violation, I think that Massiah constitutes such a substantial departure from the traditional concerns that underlie the Sixth Amendment guarantee that its language, if not its actual holding, should be re-examined.
* * *
In Kuhlmann v. Wilson, the Court considered police activity that occurred before United States v. Henry was decided but nonetheless might seem—depending on one’s views of the facts—as though it were directed by officers guided by Henry’s holding. Although the facts of the two cases are similar, the Kuhlmann majority found an important distinction that justified the opposite result.
Supreme Court of the United States
R.H. Kuhlmann v. Joseph Allan Wilson
Decided June 26, 1986 – 477 U.S. 436
Justice POWELL announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, IV, and V, and an opinion with respect to Parts II and III in which THE CHIEF JUSTICE, Justice REHNQUIST, and Justice O’CONNOR join.
This case requires us to define the circumstances under which federal courts should entertain a state prisoner’s petition for writ of habeas corpus that raises claims rejected on a prior petition for the same relief.
I
In the early morning of July 4, 1970, respondent and two confederates robbed the Star Taxicab Garage in the Bronx, New York, and fatally shot the night dispatcher. Shortly before, employees of the garage had observed respondent, a former employee there, on the premises conversing with two other men. They also witnessed respondent fleeing after the robbery, carrying loose money in his arms. After eluding the police for four days, respondent turned himself in. Respondent admitted that he had been present when the crimes took place, claimed that he had witnessed the robbery, gave the police a description of the robbers, but denied knowing them. Respondent also denied any involvement in the robbery or murder, claiming that he had fled because he was afraid of being blamed for the crimes.
After his arraignment, respondent was confined in the Bronx House of Detention, where he was placed in a cell with a prisoner named Benny Lee. Unknown to respondent, Lee had agreed to act as a police informant. Respondent made incriminating statements that Lee reported to the police. Prior to trial, respondent moved to suppress the statements on the ground that they were obtained in violation of his right to counsel. The trial court held an evidentiary hearing on the suppression motion, which revealed that the statements were made under the following circumstances.
Before respondent arrived in the jail, Lee had entered into an arrangement with Detective Cullen, according to which Lee agreed to listen to respondent’s conversations and report his remarks to Cullen. Since the police had positive evidence of respondent’s participation, the purpose of placing Lee in the cell was to determine the identities of respondent’s confederates. Cullen instructed Lee not to ask respondent any questions, but simply to “keep his ears open” for the names of the other perpetrators. Respondent first spoke to Lee about the crimes after he looked out the cellblock window at the Star Taxicab Garage, where the crimes had occurred. Respondent said, “someone’s messing with me,” and began talking to Lee about the robbery, narrating the same story that he had given the police at the time of his arrest. Lee advised respondent that this explanation “didn’t sound too good,” but respondent did not alter his story. Over the next few days, however, respondent changed details of his original account. Respondent then received a visit from his brother, who mentioned that members of his family were upset because they believed that respondent had murdered the dispatcher. After the visit, respondent again described the crimes to Lee. Respondent now admitted that he and two other men, whom he never identified, had planned and carried out the robbery, and had murdered the dispatcher. Lee informed Cullen of respondent’s statements and furnished Cullen with notes that he had written surreptitiously while sharing the cell with respondent.
After hearing the testimony of Cullen and Lee, the trial court found that Cullen had instructed Lee “to ask no questions of [respondent] about the crime but merely to listen as to what [respondent] might say in his presence.” The court determined that Lee obeyed these instructions, that he “at no time asked any questions with respect to the crime,” and that he “only listened to [respondent] and made notes regarding what [respondent] had to say.” The trial court also found that respondent’s statements to Lee were “spontaneous” and “unsolicited.” Under state precedent, a defendant’s volunteered statements to a police agent were admissible in evidence because the police were not required to prevent talkative defendants from making incriminating statements. The trial court accordingly denied the suppression motion.
The jury convicted respondent of common-law murder and felonious possession of a weapon. On May 18, 1972, the trial court sentenced him to a term of 20 years to life on the murder count efand to a concurrent term of up to 7 years on the weapons count. The Appellate Division affirmed without opinion, and the New York Court of Appeals denied respondent leave to appeal.
On December 7, 1973, respondent filed a petition for federal habeas corpus relief. Respondent argued, among other things, that his statements to Lee were obtained pursuant to police investigative methods that violated his constitutional rights. After considering Massiah v. United States, the District Court for the Southern District of New York denied the writ on January 7, 1977. The record demonstrated “no interrogation whatsoever” by Lee and “only spontaneous statements” from respondent. In the District Court’s view, these “fact[s] preclude[d] any Sixth Amendment violation.” A divided panel of the Court of Appeals for the Second Circuit affirmed.
Following this Court’s decision in United States v. Henry, respondent decided to relitigate his Sixth Amendment claim. On September 11, 1981, he filed in state trial court a motion to vacate his conviction. The judge denied the motion, on the grounds that Henry was factually distinguishable from this case, and that under state precedent Henry was not to be given retroactive effect. The Appellate Division denied respondent leave to appeal.
On July 6, 1982, respondent returned to the District Court for the Southern District of New York on a habeas petition, again arguing that admission in evidence of his incriminating statements to Lee violated his Sixth Amendment rights. Respondent contended that the decision in Henry constituted a new rule of law that should be applied retroactively to this case. The District Court found it unnecessary to consider retroactivity because it decided that Henry did not undermine the Court of Appeals’ prior disposition of respondent’s Sixth Amendment claim. A different, and again divided, panel of the Court of Appeals reversed.
We granted certiorari to consider the Court of Appeals’ decision that the “ends of justice” required consideration of this successive habeas corpus petition and that court’s application of our decision in Henry to the facts of this case. We now reverse.
II and III
[In Parts II and III, Justice POWELL, joined by THE CHIEF JUSTICE, Justice REHNQUIST, and Justice O’CONNOR wrote “that the Court of Appeals erred in concluding that the ‘ends of justice’ would be served by consideration of respondent’s successive petition. The court conceded that the evidence of respondent’s guilt ‘was nearly overwhelming.’” The constitutional claim argued by respondent does not itself raise any question as to his guilt or innocence. The District Court and the Court of Appeals should have dismissed this successive petition under on the ground that the prior judgment denying relief on this identical claim was final.” Because this portion of the opinion did not receive majority support, the remainder of the opinion addresses the merits of the Massiah claim.]
IV
Even if the Court of Appeals had correctly decided to entertain this successive habeas petition, we conclude that it erred in holding that respondent was entitled to relief under United States v. Henry. As the District Court observed, Henry left open the question whether the Sixth Amendment forbids admission in evidence of an accused’s statements to a jailhouse informant who was “placed in close proximity but [made] no effort to stimulate conversations about the crime charged.” [T]his question must, as the District Court properly decided, be answered negatively.
[T]he primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. Since “the Sixth Amendment is not violated whenever—by luck or happenstance—the State obtains incriminating statements from the accused after the right to counsel has attached,” a defendant does not make out a violation of that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.
It is thus apparent that the Court of Appeals erred in concluding that respondent’s right to counsel was violated under the circumstances of this case. Its error did not stem from any disagreement with the District Court over appropriate resolution of the question reserved in Henry, but rather from its implicit conclusion that this case did not present that open question. That conclusion was based on a fundamental mistake, namely, the Court of Appeals’ failure to accord to the state trial court’s factual findings the [appropriate] presumption of correctness.
The state court found that Officer Cullen had instructed Lee only to listen to respondent for the purpose of determining the identities of the other participants in the robbery and murder. The police already had solid evidence of respondent’s participation. The court further found that Lee followed those instructions, that he “at no time asked any questions” of respondent concerning the pending charges, and that he “only listened” to respondent’s “spontaneous” and “unsolicited” statements. The only remark made by Lee that has any support in this record was his comment that respondent’s initial version of his participation in the crimes “didn’t sound too good.” Without holding that any of the state court’s findings were not entitled to the presumption of correctness, the Court of Appeals focused on that one remark and gave a description of Lee’s interaction with respondent that is completely at odds with the facts found by the trial court. In the Court of Appeals’ view, “[s]ubtly and slowly, but surely, Lee’s ongoing verbal intercourse with [respondent] served to exacerbate [respondent’s] already troubled state of mind.” After thus revising some of the trial court’s findings, and ignoring other more relevant findings, the Court of Appeals concluded that the police “deliberately elicited” respondent’s incriminating statements. This conclusion conflicts with the decision of every other state and federal judge who reviewed this record, and is clear error.
V
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
Chief Justice BURGER, concurring.
I agree fully with the Court’s opinion and judgment. This case is clearly distinguishable from United States v. Henry. There is a vast difference between placing an “ear” in the suspect’s cell and placing a voice in the cell to encourage conversation for the “ear” to record.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
The Court holds that the Court of Appeals erred with respect to the merits of respondent’s habeas petition. According to the Court, the Court of Appeals failed to accord [the appropriate] presumption of correctness to the state trial court’s findings that respondent’s cellmate, Lee, “at no time asked any questions” of respondent concerning the pending charges, and that Lee only listened to respondent’s “spontaneous” and “unsolicited” statements. As a result, the Court concludes, the Court of Appeals failed to recognize that this case presents the question, reserved in Henry, whether the Sixth Amendment forbids the admission into evidence of an accused’s statements to a jailhouse informant who was “placed in close proximity but [made] no effort to stimulate conversations about the crime charged.” I disagree with the Court’s characterization of the Court of Appeals’ treatment of the state court’s findings and, consequently, I disagree with the Court that the instant case presents the “listening post” question.
In Henry, we found that the Federal Government had “deliberately elicited” incriminating statements from Henry based on the following circumstances. In the instant case, as in Henry, the accused was incarcerated and therefore was “susceptible to the ploys of undercover Government agents.” Like Nichols, Lee was a secret informant, usually received consideration for the services he rendered the police, and therefore had an incentive to produce the information which he knew the police hoped to obtain. Just as Nichols had done, Lee obeyed instructions not to question respondent and to report to the police any statements made by the respondent in Lee’s presence about the crime in question. And, like Nichols, Lee encouraged respondent to talk about his crime by conversing with him on the subject over the course of several days and by telling respondent that his exculpatory story would not convince anyone without more work. However, unlike the situation in Henry, a disturbing visit from respondent’s brother, rather than a conversation with the informant, seems to have been the immediate catalyst for respondent’s confession to Lee. While it might appear from this sequence of events that Lee’s comment regarding respondent’s story and his general willingness to converse with respondent about the crime were not the immediate causes of respondent’s admission, I think that the deliberate-elicitation standard requires consideration of the entire course of government behavior.
The State intentionally created a situation in which it was foreseeable that respondent would make incriminating statements without the assistance of counsel—it assigned respondent to a cell overlooking the scene of the crime and designated a secret informant to be respondent’s cellmate. The informant, while avoiding direct questions, nonetheless developed a relationship of cellmate camaraderie with respondent and encouraged him to talk about his crime. While the coup de grace was delivered by respondent’s brother, the groundwork for respondent’s confession was laid by the State. Clearly the State’s actions had a sufficient nexus with respondent’s admission of guilt to constitute deliberate elicitation within the meaning of Henry. I would affirm the judgment of the Court of Appeals.
Notes, Comments, and Questions
Together, Kuhlmann and Henry provide useful guidance to law enforcement officers wondering how they may secretly obtain information from a suspect whose right to counsel has attached. The facts of Henry constitute deliberate elicitation and accordingly a Sixth Amendment violation. By contrast, the informant in Kuhlmann acted more like a listening post and was just careful enough to honor the rule of Massiah. One can imagine the difficulty in determining exactly how active the undercover agent was in eliciting a confession, should this later be disputed at a hearing. The careful reader will note that the rules are different under Miranda prior to the attachment of the right to counsel.
Waiver of Rights under the Assistance of Counsel Clause
In Michigan v. Jackson, 475 U.S. 625 (1986), the Court set forth a rule governing waiver of rights under the Sixth Amendment’s Assistance of Counsel Clause similar to that established under the Miranda Rule. The Jackson Court recalled that in Edwards v. Arizona (Chapter 27), the Court had “rejected the notion that, after a suspect’s request for counsel, advice of rights and acquiescence in police-initiated questioning could establish a valid waiver.”
Turning to the Assistance of Counsel Clause case before it, the Court held: “We find no warrant for a different view under a Sixth Amendment analysis. Indeed, our rejection of the comparable argument in Edwards was based, in part, on our review of earlier Sixth Amendment cases. Just as written waivers are insufficient to justify police-initiated interrogations after the request for counsel in a Fifth Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis.”
Two decades later, the Court considered whether Michigan v. Jackson should remain good law or should instead be altered—or overruled entirely.
Supreme Court of the United States
Jesse Jay Montejo v. Louisiana
Decided May 26, 2009 – 556 U.S. 778
Justice SCALIA delivered the opinion of the Court.
We consider in this case the scope and continued viability of the rule announced by this Court in Michigan v. Jackson, forbidding police to initiate interrogation of a criminal defendant once he has requested counsel at an arraignment or similar proceeding.
I
Petitioner Jesse Montejo was arrested on September 6, 2002, in connection with the robbery and murder of Lewis Ferrari, who had been found dead in his own home one day earlier. Suspicion quickly focused on Jerry Moore, a disgruntled former employee of Ferrari’s dry cleaning business. Police sought to question Montejo, who was a known associate of Moore.
Montejo waived his rights under Miranda v. Arizona and was interrogated at the sheriff’s office by police detectives through the late afternoon and evening of September 6 and the early morning of September 7. During the interrogation, Montejo repeatedly changed his account of the crime, at first claiming that he had only driven Moore to the victim’s home, and ultimately admitting that he had shot and killed Ferrari in the course of a botched burglary. These police interrogations were videotaped.
On September 10, Montejo was brought before a judge for what is known in Louisiana as a “72-hour hearing”—a preliminary hearing required under state law. Although the proceedings were not transcribed, the minute record indicates what transpired: “The defendant being charged with First Degree Murder, Court ordered N[o] Bond set in this matter. Further, Court ordered the Office of Indigent Defender be appointed to represent the defendant.”
Later that same day, two police detectives visited Montejo back at the prison and requested that he accompany them on an excursion to locate the murder weapon (which Montejo had earlier indicated he had thrown into a lake). After some back-and-forth, the substance of which remains in dispute, Montejo was again read his Miranda rights and agreed to go along; during the excursion, he wrote an inculpatory letter of apology to the victim’s widow. Only upon their return did Montejo finally meet his court-appointed attorney, who was quite upset that the detectives had interrogated his client in his absence.
At trial, the letter of apology was admitted over defense objection. The jury convicted Montejo of first-degree murder, and he was sentenced to death.
The Louisiana Supreme Court affirmed the conviction and sentence. As relevant here, the court rejected Montejo’s argument that under the rule of Jackson, the letter should have been suppressed. Jackson held that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” We granted certiorari.
II
Montejo and his amici raise a number of pragmatic objections to the Louisiana Supreme Court’s interpretation of Jackson. We agree that the approach taken below would lead either to an unworkable standard, or to arbitrary and anomalous distinctions between defendants in different States. Neither would be acceptable.
Under the rule adopted by the Louisiana Supreme Court, a criminal defendant must request counsel, or otherwise “assert” his Sixth Amendment right at the preliminary hearing, before the Jackson protections are triggered. If he does so, the police may not initiate further interrogation in the absence of counsel. But if the court on its own appoints counsel, with the defendant taking no affirmative action to invoke his right to counsel, then police are free to initiate further interrogations provided that they first obtain an otherwise valid waiver by the defendant of his right to have counsel present.
This rule would apply well enough in States that require the indigent defendant formally to request counsel before any appointment is made, which usually occurs after the court has informed him that he will receive counsel if he asks for it. That is how the system works in Michigan, for example, whose scheme produced the factual background for this Court’s decision in Michigan v. Jackson. Jackson, like all other represented indigent defendants in the State, had requested counsel in accordance with the applicable state law.
But many States follow other practices. In some two dozen, the appointment of counsel is automatic upon a finding of indigency; and in a number of others, appointment can be made either upon the defendant’s request or sua sponte by the court. Nothing in our Jackson opinion indicates whether we were then aware that not all States require that a defendant affirmatively request counsel before one is appointed; and of course we had no occasion there to decide how the rule we announced would apply to these other States.
The Louisiana Supreme Court’s answer to that unresolved question is troublesome. The central distinction it draws—between defendants who “assert” their right to counsel and those who do not—is exceedingly hazy when applied to States that appoint counsel absent request from the defendant. How to categorize a defendant who merely asks, prior to appointment, whether he will be appointed counsel? Or who inquires, after the fact, whether he has been? What treatment for one who thanks the court after the appointment is made? And if the court asks a defendant whether he would object to appointment, will a quick shake of his head count as an assertion of his right?
To the extent that the Louisiana Supreme Court’s rule also permits a defendant to trigger Jackson through the “acceptance” of counsel, that notion is even more mysterious: How does one affirmatively accept counsel appointed by court order? An indigent defendant has no right to choose his counsel so it is hard to imagine what his “acceptance” would look like, beyond the passive silence that Montejo exhibited.
III
But if the Louisiana Supreme Court’s application of Jackson is unsound as a practical matter, then Montejo’s solution is untenable as a theoretical and doctrinal matter. Under his approach, once a defendant is represented by counsel, police may not initiate any further interrogation. Such a rule would be entirely untethered from the original rationale of Jackson.
A
It is worth emphasizing first what is not in dispute or at stake here. Under our precedents, once the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all “critical” stages of the criminal proceedings. Interrogation by the State is such a stage.
Our precedents also place beyond doubt that the Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent. The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled. And when a defendant is read his Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick, even though the Miranda rights purportedly have their source in the Fifth Amendment.
The only question raised by this case, and the only one addressed by the Jackson rule, is whether courts must presume that such a waiver is invalid under certain circumstances. We created such a presumption in Jackson by analogy to a similar prophylactic rule established to protect the Fifth Amendment-based Miranda right to have counsel present at any custodial interrogation. Edwards v. Arizona decided that once “an accused has invoked his right to have counsel present during custodial interrogation … [he] is not subject to further interrogation by the authorities until counsel has been made available,” unless he initiates the contact.
The Edwards rule is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” It does this by presuming his postassertion statements to be involuntary, “even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards.” This prophylactic rule thus “protect[s] a suspect’s voluntary choice not to speak outside his lawyer’s presence.”
Jackson represented a “wholesale importation of the Edwards rule into the Sixth Amendment.” The Jackson Court decided that a request for counsel at an arraignment should be treated as an invocation of the Sixth Amendment right to counsel “at every critical stage of the prosecution,” despite doubt that defendants “actually inten[d] their request for counsel to encompass representation during any further questioning” because doubts must be “resolved in favor of protecting the constitutional claim.” Citing Edwards, the Court held that any subsequent waiver would thus be “insufficient to justify police-initiated interrogation.” In other words, we presume such waivers involuntary “based on the supposition that suspects who assert their right to counsel are unlikely to waive that right voluntarily” in subsequent interactions with police.
B
With this understanding of what Jackson stands for and whence it came, it should be clear that Montejo’s interpretation of that decision—that no represented defendant can ever be approached by the State and asked to consent to interrogation—is off the mark. When a court appoints counsel for an indigent defendant in the absence of any request on his part, there is no basis for a presumption that any subsequent waiver of the right to counsel will be involuntary. There is no “initial election” to exercise the right that must be preserved through a prophylactic rule against later waivers. No reason exists to assume that a defendant like Montejo, who has done nothing at all to express his intentions with respect to his Sixth Amendment rights, would not be perfectly amenable to speaking with the police without having counsel present. And no reason exists to prohibit the police from inquiring. Edwards and Jackson are meant to prevent police from badgering defendants into changing their minds about their rights, but a defendant who never asked for counsel has not yet made up his mind in the first instance.
In practice, Montejo’s rule would prevent police-initiated interrogation entirely once the Sixth Amendment right attaches, at least in those States that appoint counsel promptly without request from the defendant.
IV
So on the one hand, requiring an initial “invocation” of the right to counsel in order to trigger the Jackson presumption is consistent with the theory of that decision, but (as Montejo and his amici argue) would be unworkable in more than half the States of the Union. On the other hand, eliminating the invocation requirement would render the rule easy to apply but depart fundamentally from the Jackson rationale.
We do not think that stare decisis requires us to expand significantly the holding of a prior decision—fundamentally revising its theoretical basis in the process—in order to cure its practical deficiencies. To the contrary, the fact that a decision has proved “unworkable” is a traditional ground for overruling it.
Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned. The first two cut in favor of abandoning Jackson: The opinion is only two decades old, and eliminating it would not upset expectations.
Which brings us to the strength of Jackson’s reasoning. When this Court creates a prophylactic rule in order to protect a constitutional right, the relevant “reasoning” is the weighing of the rule’s benefits against its costs. “The value of any prophylactic rule … must be assessed not only on the basis of what is gained, but also on the basis of what is lost.” We think that the marginal benefits of Jackson (viz., the number of confessions obtained coercively that are suppressed by its bright-line rule and would otherwise have been admitted) are dwarfed by its substantial costs (viz., hindering “society’s compelling interest in finding, convicting, and punishing those who violate the law”).
What does the Jackson rule actually achieve by way of preventing unconstitutional conduct? Recall that the purpose of the rule is to preclude the State from badgering defendants into waiving their previously asserted rights. The effect of this badgering might be to coerce a waiver, which would render the subsequent interrogation a violation of the Sixth Amendment. Even though involuntary waivers are invalid even apart from Jackson, mistakes are of course possible when courts conduct case-by-case voluntariness review. A bright-line rule like that adopted in Jackson ensures that no fruits of interrogations made possible by badgering-induced involuntary waivers are ever erroneously admitted at trial.
But without Jackson, how many would be? The answer is few if any. The principal reason is that the Court has already taken substantial other, overlapping measures toward the same end. Under Miranda’s prophylactic protection of the right against compelled self-incrimination, any suspect subject to custodial interrogation has the right to have a lawyer present if he so requests, and to be advised of that right. Under Edwards’ prophylactic protection of the Miranda right, once such a defendant “has invoked his right to have counsel present,” interrogation must stop. And under Minnick’s prophylactic protection of the Edwards right, no subsequent interrogation may take place until counsel is present, “whether or not the accused has consulted with his attorney.”
These three layers of prophylaxis are sufficient. Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but “badgering” by later requests is prohibited. If that regime suffices to protect the integrity of “a suspect’s voluntary choice not to speak outside his lawyer’s presence” before his arraignment, it is hard to see why it would not also suffice to protect that same choice after arraignment, when Sixth Amendment rights have attached. And if so, then Jackson is simply superfluous.
It is true, as Montejo points out in his supplemental brief, that the doctrine established by Miranda and Edwards is designed to protect Fifth Amendment, not Sixth Amendment, rights. But that is irrelevant. What matters is that these cases, like Jackson, protect the right to have counsel during custodial interrogation—which right happens to be guaranteed (once the adversary judicial process has begun) by two sources of law. Since the right under both sources is waived using the same procedure, doctrines ensuring voluntariness of the Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment waiver.
Montejo also correctly observes that the Miranda-Edwards regime is narrower than Jackson in one respect: The former applies only in the context of custodial interrogation. If the defendant is not in custody then those decisions do not apply; nor do they govern other, noninterrogative types of interactions between the defendant and the State (like pretrial lineups). However, those uncovered situations are the least likely to pose a risk of coerced waivers. When a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering. And noninterrogative interactions with the State do not involve the “inherently compelling pressures” that one might reasonably fear could lead to involuntary waivers.
Jackson was policy driven, and if that policy is being adequately served through other means, there is no reason to retain its rule. Miranda and the cases that elaborate upon it already guarantee not simply noncoercion in the traditional sense, but what Justice Harlan referred to as “voluntariness with a vengeance.” There is no need to take Jackson’s further step of requiring voluntariness on stilts.
On the other side of the equation are the costs of adding the bright-line Jackson rule on top of Edwards and other extant protections. The principal cost of applying any exclusionary rule “is, of course, letting guilty and possibly dangerous criminals go free ….” Jackson not only “operates to invalidate a confession given by the free choice of suspects who have received proper advice of their Miranda rights but waived them nonetheless,” but also deters law enforcement officers from even trying to obtain voluntary confessions. The “ready ability to obtain uncoerced confessions is not an evil but an unmitigated good.” Without these confessions, crimes go unsolved and criminals unpunished. These are not negligible costs, and in our view the Jackson Court gave them too short shrift.
In sum, when the marginal benefits of the Jackson rule are weighed against its substantial costs to the truth-seeking process and the criminal justice system, we readily conclude that the rule does not “pay its way.” Michigan v. Jackson should be and now is overruled.
V
Although our holding means that the Louisiana Supreme Court correctly rejected Montejo’s claim under Jackson, we think that Montejo should be given an opportunity to contend that his letter of apology should still have been suppressed under the rule of Edwards. If Montejo made a clear assertion of the right to counsel when the officers approached him about accompanying them on the excursion for the murder weapon, then no interrogation should have taken place unless Montejo initiated it. Even if Montejo subsequently agreed to waive his rights, that waiver would have been invalid had it followed an “unequivocal election of the right.”
Montejo understandably did not pursue an Edwards objection, because Jackson served as the Sixth Amendment analogy to Edwards and offered broader protections. Our decision today, overruling Jackson, changes the legal landscape and does so in part based on the protections already provided by Edwards. Thus we think that a remand is appropriate so that Montejo can pursue this alternative avenue for relief. Montejo may also seek on remand to press any claim he might have that his Sixth Amendment waiver was not knowing and voluntary, e.g., his argument that the waiver was invalid because it was based on misrepresentations by police as to whether he had been appointed a lawyer. These matters have heightened importance in light of our opinion today.
We do not venture to resolve these issues ourselves, not only because we are a court of final review, “not of first view,” but also because the relevant facts remain unclear. Montejo and the police gave inconsistent testimony about exactly what took place on the afternoon of September 10, 2002, and the Louisiana Supreme Court did not make an explicit credibility determination. Moreover, Montejo’s testimony came not at the suppression hearing, but rather only at trial, and we are unsure whether under state law that testimony came too late to affect the propriety of the admission of the evidence. These matters are best left for resolution on remand.
This case is an exemplar of Justice Jackson’s oft quoted warning that this Court “is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.” We today remove Michigan v. Jackson’s fourth story of prophylaxis.
The judgment of the Louisiana Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
Justice STEVENS, with whom Justice SOUTER and Justice GINSBURG join, and with whom Justice BREYER joins [except for a footnote not included in this book], dissenting.
Even if Jackson had never been decided, it would be clear that Montejo’s Sixth Amendment rights were violated. Today’s decision eliminates the rule that “any waiver of Sixth Amendment rights given in a discussion initiated by police is presumed invalid” once a defendant has invoked his right to counsel. Nevertheless, under the undisputed facts of this case, there is no sound basis for concluding that Montejo made a knowing and valid waiver of his Sixth Amendment right to counsel before acquiescing in police interrogation following his 72-hour hearing. Because police questioned Montejo without notice to, and outside the presence of, his lawyer, the interrogation violated Montejo’s right to counsel even under pre-Jackson precedent.
Our pre-Jackson case law makes clear that “the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent.” The Sixth Amendment entitles indicted defendants to have counsel notified of and present during critical confrontations with the State throughout the pretrial process. Given the realities of modern criminal prosecution, the critical proceedings at which counsel’s assistance is required more and more often occur outside the courtroom in pretrial proceedings “where the results might well settle the accused’s fate and reduce the trial itself to a mere formality.”
The Court avoids confronting the serious Sixth Amendment concerns raised by the police interrogation in this case by assuming that Montejo validly waived his Sixth Amendment rights before submitting to interrogation. It does so by summarily concluding that “doctrines ensuring voluntariness of the Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment waiver”; thus, because Montejo was given Miranda warnings prior to interrogation, his waiver was presumptively valid. Ironically, while the Court faults Jackson for blurring the line between this Court’s Fifth and Sixth Amendment jurisprudence, it commits the same error by assuming that the Miranda warnings given in this case, designed purely to safeguard the Fifth Amendment right against self-incrimination, were somehow adequate to protect Montejo’s more robust Sixth Amendment right to counsel.
A defendant’s decision to forgo counsel’s assistance and speak openly with police is a momentous one. Given the high stakes of making such a choice and the potential value of counsel’s advice and mediation at that critical stage of the criminal proceedings, it is imperative that a defendant possess “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it” before his waiver is deemed valid. Because the administration of Miranda warnings was insufficient to ensure Montejo understood the Sixth Amendment right he was being asked to surrender, the record in this case provides no basis for concluding that Montejo validly waived his right to counsel, even in the absence of Jackson’s enhanced protections.
The Court’s decision to overrule Jackson is unwarranted. Not only does it rest on a flawed doctrinal premise, but the dubious benefits it hopes to achieve are far outweighed by the damage it does to the rule of law and the integrity of the Sixth Amendment right to counsel. Moreover, even apart from the protections afforded by Jackson, the police interrogation in this case violated Jesse Montejo’s Sixth Amendment right to counsel. I respectfully dissent.
Notes, Comments, and Questions
The different results in Montejo and Edwards illustrate that different rules apply depending on who is in custody. Montejo overruled Michigan v. Jackson—which governed Sixth Amendment waivers—but did not overrule Edwards v. Arizona—which still governs Miranda Rule waivers after a suspect invokes the right to counsel. Accordingly, if a suspect who has been indicted invokes his right to counsel during custodial interrogation, police must cease the interrogation and cannot return later to seek a waiver outside the presence of counsel. If that suspect is released, however, Miranda will no longer apply because the suspect is not “in custody.” Under Montejo, police would be free to visit the suspect at home in hope of obtaining a valid waiver.
Students should note that Montejo did not overrule any of the Sixth Amendment cases concerning informants whom suspects do not realize are working for police, such as Massiah, Henry, and Kuhlmann. Once the Sixth Amendment right to counsel attaches, defendants are entitled to counsel during interrogation, and an undercover agent cannot obtain a valid waiver.
This chapter concludes our unit on interrogation. In our next chapter, we begin our examination of the exclusionary rule, by which the Court prevents prosecutors from using certain unlawfully-obtained evidence against criminal defendants.
Before turning to the next chapter, students may wish to review their knowledge of interrogations with a flowchart exercise, which begins on the next page.
Interrogation Flowchart Exercise
Flowcharts can help students visualize what they have learned. The goal is not to memorize the example chart presented here but instead to create a new chart that helps one to connect material from throughout the book. Your authors recommend that when students make their own charts, they add additional detail, such as case names or chapter numbers. For example, in the box asking whether a statement was “voluntary,” a student might refer to cases from Chapter 22, such as Brown v. Mississippi, and especially Arizona v. Fulminante, which is a particularly helpful case because its facts are so close to the line separating a voluntary confession from an inadmissible, involuntary confession.
This chart focuses on the Miranda Rule. A separate chart might depict Sixth Amendment law set forth in Massiah and related cases.
These charts have two primary purposes. One is that when the charts are finished, they can serve as study aids. The other is that the creation of the charts—even if students never review them after finishing them—forces students to consider material more carefully than they otherwise might, which helps with learning and with retention of information. Also, fellow students can help spot misunderstandings that, were they not in a chart, would remain uncorrected. Study group members might wish to bring charts to share with classmates.
Interrogation Review
The Fifth and Sixth Amendments: Constitutional Regulation of Interrogation
Before moving to the next chapter, students may wish to review what we have learned about how police interrogation practices are regulated by constitutional law.
Instructions: For each problem, indicate which if any doctrines likely prohibit the conduct described. The answer choices are: (1) Miranda Rule, (2) Massiah doctrine, (3) voluntariness requirement, (4) multiple doctrines (indicate which ones), and (5) none (i.e., the suspect has no good arguments based on interrogation law presented so far in this book). Jot down your reasoning briefly. If you are not sure, note why.
Each problem is independent of all other ones.
1) Police suspect someone of dealing drugs but lack good evidence. Officers hide a microphone in the pocket of an undercover agent disguised as a drug buyer. The suspect welcomes the undercover agent into the suspect’s home. However, when the undercover agent asks about drugs, the suspect says, “You must be confused. I don’t have anything to do with drugs.” Frustrated, the agent brandishes a pistol and shouts, “Tell me the truth or I’ll shoot.” The suspect says, “Fine, fine. I sell weed. How much do you need?”
2) A suspect has been indicted for tax evasion. Unable to make bail, the suspect returns to jail. Police plant an undercover agent in the suspect’s cell, disguised as a fellow inmate. The agent asks the suspect about tax evasion and learns important details about the suspect’s crimes.
3) A suspect has been indicted for embezzlement. Released on bail, the suspect goes home. Police send an undercover agent to the suspect’s home. (The agent is a co-conspirator who, without the suspect’s knowledge, has decided to cooperate with prosecutors.) The agent records the suspect describing the embezzlement scheme.
4) A suspect has been indicted for cocaine distribution. Released on bail, the suspect goes to a favorite public park and begins calling friends, sharing the good news about the bail hearing. Police have hidden a microphone on the underside of the suspect’s favorite park bench. Using that device, police overhear the suspect tell friends about continuing illegal activity.
5) A suspect is arrested for robbery. While driving the suspect to the police station, officers converse with one another. One officer says, “Can you believe this guy? I can’t believe I’m stuck in a car with someone who robbed a gas station mini mart, a boy scout troop, and a church. What a piece of human garbage!” Impulsively, the suspect responds, “Listen, I’m not perfect, but I definitely didn’t rob any boy scouts.” | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/03%3A_Interrogations/3.09%3A_Chapter_30_-_The_Sixth_Amendment-_Massiah_Doctrine_and_Waiver_of_Rights.txt |
THE EXCLUSIONARY RULE
Introduction to the Exclusionary Rule
In the reading assignment for the first chapter, students were encouraged to consider two questions when reading cases: “First, were someone’s rights (usually constitutional rights) violated? Second, if so, so what?” We have thus far focused mostly on the first question, examining how the Court has construed the rights guaranteed by the Fourth, Fifth, Sixth, and Fourteenth Amendments. Yet the second question has arisen from time to time as the Justices debated whether certain behavior by state agents justified the exclusion of evidence. For example, the public safety exception to the Miranda Rule (Chapter 28) rests upon a judgment by the Court that police efforts to manage an ongoing “emergency”—or, to be less dramatic, a plausible urgent threat to public safety—are not the sort of activity that should hinder prosecution. Similarly, the opinions in Brewer v. Williams (Chapter 29) clashed over the propriety of excluding evidence against an accused murderer that police obtained through questionable interrogation techniques. Further, lurking behind the facts and legal analysis of nearly every case included in this book so far has been a defendant’s desire to prevent evidence from being offered by prosecutors. Recall, for example, Terry v. Ohio (Chapter 20), in which the Court held that police may conduct certain searches and seizures without probable cause. John Terry did not bring his case to the Supreme Court because of his interest in Fourth Amendment jurisprudence; instead, he hoped that the Court might somehow prevent the state of Ohio from sending him to prison for carrying the concealed weapon that Officer McFadden found when frisking Terry in Zucker’s store that Cleveland afternoon.
Terry’s desired outcome—the exclusion of evidence—is the same as most of the parties we have seen complaining about state action of one kind or another. Yes, there are exceptions, such as Muehler v. Mena (Chapter 8), a lawsuit brought by a woman not found to have committed any crime who objected to how police treated her while executing a search warrant. She wanted money, not a ruling about evidence. We will turn later to the doctrine governing when money damages are available as a remedy for constitutional harms.
For now, and for the bulk of this unit, we turn to the “exclusionary rule,” a term that covers various doctrines through which the Court has prohibited certain uses of unlawfully-obtained evidence.
Underlying all debate on the exclusionary rule, one finds two facts. Although not always explicitly acknowledged, these facts pervade the Justices’ reasoning in exclusionary rule cases. First, when courts prevent prosecutors from using relevant, reliable evidence against criminal defendants, courts impede the fight against crime. One can debate the extent of the impediment—critics of the exclusionary rule tend to imagine higher hurdles than those described by supporters of the doctrine. Yet no honest defender of the exclusionary rule can deny that, in at least some cases, guilty defendants—sometimes guilty of terrible crimes—go free because of the Court’s criminal procedure jurisprudence. In the words of Justice Cardozo during his time on the Court of Appeals of New York, “The criminal is to go free because the constable has blundered.”
Second, remedies other than the exclusionary rule have not been effective in preventing police from violating the rights announced in Supreme Court opinions—that is, the rights described in books like this one. Other remedies exist, including money damages, internal police department discipline, and oversight by elected officials. Again, one can debate the extent of the problem. Opponents of the exclusionary rule tend to see less police misconduct than do the rule’s supporters, and exclusionary rule opponents tend to have greater faith in the professionalism and goodwill of police department leaders and the politicians to whom they report. Yet police departments—from top leaders to officers on the street—worry about losing evidence to the exclusionary rule and govern their behavior, at least in part, to avoid that judicial remedy.
In short, the exclusionary rule promotes police conformity with Supreme Court criminal procedure decisions, and it does so at the cost of evidence otherwise available to convict accused criminals. As Judge Friendly put it, “The basis for excluding real evidence obtained by an unconstitutional search is not at all that use of the evidence may result in unreliable factfinding. The evidence is likely to be the most reliable that could possibly be obtained; exclusion rather than admission creates the danger of a verdict erroneous on the true facts. The sole reason for exclusion is that experience has demonstrated this to be the only effective method for deterring the police from violating the Constitution.”1
Some might quibble with Judge Friendly’s statement that the “sole reason” for the exclusionary rule is to deter police misconduct. For example, perhaps apart from deterrence, exclusion is justified because courts will lose respect from the people if they allow agents of the state to prosecute the accused using evidence obtained illegally. That said, deterrence is the primary justification offered by the Court, especially in recent decades. Students should consider which justifications, if any, they find persuasive.
Supreme Court of the United States
Fremont Weeks v. United States
Decided February 24, 1914 – 232 U.S. 383
Mr. Justice Day delivered the opinion of the [unanimous] court:
An indictment was returned against the plaintiff in error, defendant below, and herein so designated, in the district court of the United States for the Western District of Missouri, containing nine counts. The seventh count, upon which a conviction was had, charged the use of the mails for the purpose of transporting certain coupons or tickets representing chances or shares in a lottery or gift enterprise, in violation of § 213 of the Criminal Code. Sentence of fine and imprisonment was imposed. This writ of error is to review that judgment.
The defendant was arrested by a police officer, so far as the record shows, without warrant, at the Union Station in Kansas City, Missouri, where he was employed by an express company. Other police officers had gone to the house of the defendant, and being told by a neighbor where the key was kept, found it and entered the house. They searched the defendant’s room and took possession of various papers and articles found there, which were afterwards turned over to the United States marshal. Later in the same day police officers returned with the marshal, who thought he might find additional evidence, and, being admitted by someone in the house, probably a boarder, in response to a rap, the marshal searched the defendant’s room and carried away certain letters and envelops found in the drawer of a chiffonier. Neither the marshal nor the police officer had a search warrant.
[The defendant filed a petition requesting return of his “private papers, books, and other property” and stating that the use of his personal items at trial would violate his Fourth and Fifth Amendment rights.]
Upon consideration of the petition the court entered in the cause an order directing the return of such property as was not pertinent to the charge against the defendant, but denied the petition as to pertinent matter, reserving the right to pass upon the pertinency at a later time. In obedience to the order the district attorney returned part of the property taken, and retained the remainder, concluding a list of the latter with the statement that, “all of which last above described property is to be used in evidence in the trial of the above-entitled cause, and pertains to the alleged sale of lottery tickets of the company above named.”
After the jury had been sworn and before any evidence had been given, the defendant again urged his petition for the return of his property, which was denied by the court. Upon the introduction of such papers during the trial, the defendant objected on the ground that the papers had been obtained without a search warrant, and by breaking open his home, in violation of the 4th and 5th Amendments to the Constitution of the United States, which objection was overruled by the court.
The defendant assigns error, among other things, in the court’s refusal to grant his petition for the return of his property, and in permitting the papers to be used at the trial.
It is thus apparent that the question presented involves the determination of the duty of the court with reference to the motion made by the defendant for the return of certain letters, as well as other papers, taken from his room by the United States marshal, who, without authority of process, if any such could have been legally issued, visited the room of the defendant for the declared purpose of obtaining additional testimony to support the charge against the accused, and, having gained admission to the house, took from the drawer of a chiffonier there found certain letters written to the defendant, tending to show his guilt. These letters were placed in the control of the district attorney, and were subsequently produced by him and offered in evidence against the accused at the trial. The defendant contends that such appropriation of his private correspondence was in violation of rights secured to him by the 4th and 5th Amendments to the Constitution of the United States. We shall deal with the 4th Amendment.
[The Court recounted the origin and history of the Fourth Amendment.]
The effect of the 4th Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted under our Federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.
The case in the aspect in which we are dealing with it involves the right of the court in a criminal prosecution to retain for the purposes of evidence the letters and correspondence of the accused, seized in his house in his absence and without his authority, by a United States marshal holding no warrant for his arrest and none for the search of his premises. The accused, without awaiting his trial, made timely application to the court for an order for the return of these letters, as well or other property. This application was denied, the letters retained and put in evidence, after a further application at the beginning of the trial, both applications asserting the rights of the accused under the 4th and 5th Amendments to the Constitution. If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. The United States marshal could only have invaded the house of the accused when armed with a warrant issued as required by the Constitution, upon sworn information, and describing with reasonable particularity the thing for which the search was to be made. Instead, he acted without sanction of law, doubtless prompted by the desire to bring further proof to the aid of the government, and under color of his office undertook to make a seizure of private papers in direct violation of the constitutional prohibition against such action. Under such circumstances, without sworn information and particular description, not even an order of court would have justified such procedure; much less was it within the authority of the United States marshal to thus invade the house and privacy of the accused. To sanction such proceedings would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action.
The court before which the application was made in this case recognized the illegal character of the seizure, and ordered the return of property not in its judgment competent to be offered at the trial, but refused the application of the accused to turn over the letters, which were afterwards put in evidence on behalf of the government. While there is no opinion in the case, the court in this proceeding doubtless relied upon what is now contended by the government to be the correct rule of law under such circumstances, that the letters having come into the control of the court, it would not inquire into the manner in which they were obtained, but, if competent, would keep them and permit their use in evidence. Such proposition, the government asserts, is conclusively established by certain decisions of this court.
The right of the court to deal with papers and documents in the possession of the district attorney and other officers of the court, and subject to its authority, was recognized in Wise v. Henkel. That papers wrongfully seized should be turned over to the accused has been frequently recognized in the early as well as later decisions of the courts.
We therefore reach the conclusion that the letters in question were taken from the house of the accused by an official of the United States, acting under color of his office, in direct violation of the constitutional rights of the defendant; that having made a seasonable application for their return, which was heard and passed upon by the court, there was involved in the order refusing the application a denial of the constitutional rights of the accused, and that the court should have restored these letters to the accused. In holding them and permitting their use upon the trial, we think prejudicial error was committed. As to the papers and property seized by the policemen, it does not appear that they acted under any claim of Federal authority such as would make the amendment applicable to such unauthorized seizures. The record shows that what they did by way of arrest and search and seizure was done before the finding of the indictment in the Federal court; under what supposed right or authority does not appear. What remedies the defendant may have against them we need not inquire, as the 4th Amendment is not directed to individual misconduct of such officials. Its limitations reach the Federal government and its agencies.
It results that the judgment of the court below must be reversed, and the case remanded for further proceedings in accordance with this opinion. Reversed.
Notes, Comments, and Questions
A few years after deciding Weeks, the Court confronted an attempt by federal officials to avoid the new exclusionary rule. In Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), federal agents raided an office unlawfully and seized books and records. After being ordered to return the illegally-gotten items, the government retained photographs and copies of some of the documents. Government lawyers then sought to subpoena the original documents (once again in the hands of their owners) on the basis of information learned while the documents were in the possession of federal agents. The Court reacted as follows:
“The proposition could not be presented more nakedly. It is that although of course its seizure was an outrage which the Government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them; that the protection of the Constitution covers the physical possession but not any advantages that the Government can gain over the object of its pursuit by doing the forbidden act.”
“The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.”
The rule stated in Silverthorne Lumber has sometimes been called the “fruit of the poisonous tree” doctrine. The analogy is that if the evidence or knowledge obtained through the original constitutional violation is a poisonous tree, then evidence obtained as a result of that wrong is a poisonous fruit which must also be excluded from evidence. The case of Kyllo v. United States (Chapter 3) provides an example. If, as the Court found, the thermal imaging of Kyllo’s house was an unlawful search, then a search warrant obtained by officers who recited information learned during the illegal imaging could not justify the subsequent police entry into the house. The marijuana seized from Kyllo’s house was poisonous fruit of the thermal imaging.
In the next case, the Court considered whether to apply the rule of Weeks to state courts. The Court had already decided that the Fourth Amendment’s protections against unreasonable searches and seizures were “incorporated” against the states through the Fourteenth Amendment. The issue was whether the exclusionary rule would also be imposed on the states.
Supreme Court of the United States
Dollree Mapp v. Ohio
Decided June 19, 1961 – 367 U.S. 643
Mr. Justice CLARK delivered the opinion of the Court.
Appellant stands convicted of knowingly having had in her possession and under her control certain lewd and lascivious books, pictures, and photographs in violation of § 2905.34 of Ohio’s Revised Code. As officially stated in the syllabus to its opinion, the Supreme Court of Ohio found that her conviction was valid though “based primarily upon the introduction in evidence of lewd and lascivious books and pictures unlawfully seized during an unlawful search of defendant’s home ….”
On May 23, 1957, three Cleveland police officers arrived at appellant’s residence in that city pursuant to information that “a person [was] hiding out in the home, who was wanted for questioning in connection with a recent bombing, and that there was a large amount of policy paraphernalia being hidden in the home.” Miss Mapp and her daughter by a former marriage lived on the top floor of the two-family dwelling. Upon their arrival at that house, the officers knocked on the door and demanded entrance but appellant, after telephoning her attorney, refused to admit them without a search warrant. They advised their headquarters of the situation and undertook a surveillance of the house.
The officers again sought entrance some three hours later when four or more additional officers arrived on the scene. When Miss Mapp did not come to the door immediately, at least one of the several doors to the house was forcibly opened and the policemen gained admittance. Meanwhile Miss Mapp’s attorney arrived, but the officers, having secured their own entry, and continuing in their defiance of the law, would permit him neither to see Miss Mapp nor to enter the house. It appears that Miss Mapp was halfway down the stairs from the upper floor to the front door when the officers, in this highhanded manner, broke into the hall. She demanded to see the search warrant. A paper, claimed to be a warrant, was held up by one of the officers. She grabbed the “warrant” and placed it in her bosom. A struggle ensued in which the officers recovered the piece of paper and as a result of which they handcuffed appellant because she had been “belligerent” in resisting their official rescue of the “warrant” from her person. Running roughshod over appellant, a policeman “grabbed” her, “twisted [her] hand,” and she “yelled [and] pleaded with him” because “it was hurting.” Appellant, in handcuffs, was then forcibly taken upstairs to her bedroom where the officers searched a dresser, a chest of drawers, a closet and some suitcases. They also looked into a photo album and through personal papers belonging to the appellant. The search spread to the rest of the second floor including the child’s bedroom, the living room, the kitchen and a dinette. The basement of the building and a trunk found therein were also searched. The obscene materials for possession of which she was ultimately convicted were discovered in the course of that widespread search.
At the trial no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for. At best, “There is, in the record, considerable doubt as to whether there ever was any warrant for the search of defendant’s home.” The Ohio Supreme Court believed a “reasonable argument” could be made that the conviction should be reversed “because the ‘methods’ employed to obtain the [evidence] were such as to ‘offend “a sense of justice,”’” but the court found determinative the fact that the evidence had not been taken “from defendant’s person by the use of brutal or offensive physical force against defendant.”
The State says that even if the search were made without authority, or otherwise unreasonably, it is not prevented from using the unconstitutionally seized evidence at trial, citing Wolf v. People of State of Colorado, 338 U.S. 25 (1949), in which this Court did indeed hold “that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.” On this appeal, it is urged once again that we review that holding.
I
[T]he Court in [Weeks v. United States] clearly stated that use of [] seized evidence involved “a denial of the constitutional rights of the accused.” Thus, in the year 1914, in the Weeks case, this Court “for the first time” held that “in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure.” This Court has ever since required of federal law officers a strict adherence to that command which this Court has held to be a clear, specific, and constitutionally required—even if judicially implied—deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to “a form of words.” It meant, quite simply, that “conviction by means of unlawful seizures and enforced confessions … should find no sanction in the judgments of the courts …,” and that such evidence “shall not be used at all.”
There are in the cases of this Court some passing references to the Weeks rule as being one of evidence. But the plain and unequivocal language of Weeks—and its later paraphrase in Wolf—to the effect that the Weeks rule is of constitutional origin, remains entirely undisturbed.
II
In 1949, 35 years after Weeks was announced, this Court, in Wolf v. People of State of Colorado, again for the first time, discussed the effect of the Fourth Amendment upon the States through the operation of the Due Process Clause of the Fourteenth Amendment. It said:
“[W]e have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment.”
Nevertheless, after declaring that the “security of one’s privacy against arbitrary intrusion by the police” is “implicit in ‘the concept of ordered liberty’ and as such enforceable against the States through the Due Process Clause” and announcing that it “stoutly adhere[d]” to the Weeks decision, the Court decided that the Weeks exclusionary rule would not then be imposed upon the States as “an essential ingredient of the right.” The Court’s reasons … were bottomed on factual considerations.
While they are not basically relevant to a decision that the exclusionary rule is an essential ingredient of the Fourth Amendment as the right it embodies is vouchsafed against the States by the Due Process Clause, we will consider the current validity of the factual grounds upon which Wolf was based.
The Court in Wolf first stated that “[t]he contrariety of views of the States” on the adoption of the exclusionary rule of Weeks was “particularly impressive”; and, in this connection that it could not “brush aside the experience of States which deem the incidence of such conduct by the police too slight to call for a deterrent remedy … by overriding the [States’] relevant rules of evidence.” While in 1949, prior to the Wolf case, almost two-thirds of the States were opposed to the use of the exclusionary rule, now, despite the Wolf case, more than half of those since passing upon it, by their own legislative or judicial decision, have wholly or partly adopted or adhered to the Weeks rule. Significantly, among those now following the rule is California, which, according to its highest court, was “compelled to reach that conclusion because other remedies have completely failed to secure compliance with the constitutional provisions ….” In connection with this California case, we note that the second basis elaborated in Wolf in support of its failure to enforce the exclusionary doctrine against the States was that “other means of protection” have been afforded “the right to privacy.” The experience of California that such other remedies have been worthless and futile is buttressed by the experience of other States. The obvious futility of relegating the Fourth Amendment of the protection of other remedies has, moreover, been recognized by this Court since Wolf.
Likewise, time has set its face against what Wolf called the “weighty testimony” of People v. Defore, 150 N.E. 585 (N.Y. 1926). There Justice (then Judge) Cardozo, rejecting adoption of the Weeks exclusionary rule in New York, had said that “[t]he Federal rule as it stands is either too strict or too lax.” However, the force of that reasoning has been largely vitiated by later decisions of this Court. These include the recent discarding of the “silver platter” doctrine which allowed federal judicial use of evidence seized in violation of the Constitution by state agents; the relaxation of the formerly strict requirements as to standing to challenge the use of evidence thus seized, so that now the procedure of exclusion, “ultimately referable to constitutional safeguards,” is available to anyone even “legitimately on [the] premises” unlawfully searched; and finally, the formulation of a method to prevent state use of evidence unconstitutionally seized by federal agents. Because there can be no fixed formula, we are admittedly met with “recurring questions of the reasonableness of searches,” but less is not to be expected when dealing with a Constitution, and, at any rate, “[r]easonableness is in the first instance for the [trial court] to determine.”
It, therefore, plainly appears that the factual considerations supporting the failure of the Wolf Court to include the Weeks exclusionary rule when it recognized the enforceability of the right to privacy against the States in 1949, while not basically relevant to the constitutional consideration, could not, in any analysis, now be deemed controlling.
III
Some five years after Wolf, in answer to a plea made here Term after Term that we overturn its doctrine on applicability of the Weeks exclusionary rule, this Court indicated that such should not be done until the States had “adequate opportunity to adopt or reject the [Weeks] rule.”
Today we once again examine Wolf’s constitutional documentation of the right to privacy free from unreasonable state intrusion, and, after its dozen years on our books, are led by it to close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.
IV
Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government. Were it otherwise, then just as without the Weeks rule the assurance against unreasonable federal searches and seizures would be “a form of words,” valueless and undeserving of mention in a perpetual charter of inestimable human liberties, so too, without that rule the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Court’s high regard as a freedom “implicit in the concept of ordered liberty.” At the time that the Court held in Wolf that the Amendment was applicable to the States through the Due Process Clause, the cases of this Court, as we have seen, had steadfastly held that as to federal officers the Fourth Amendment included the exclusion of the evidence seized in violation of its provisions. Even Wolf “stoutly adhered” to that proposition. The right to privacy, when conceded operatively enforceable against the States, was not susceptible of destruction by avulsion of the sanction upon which its protection and enjoyment had always been deemed dependent under the Boyd, Weeks and Silverthorne cases. Therefore, in extending the substantive protections of due process to all constitutionally unreasonable searches—state or federal—it was logically and constitutionally necessary that the exclusion doctrine—an essential part of the right to privacy—be also insisted upon as an essential ingredient of the right newly recognized by the Wolf case. In short, the admission of the new constitutional right by Wolf could not consistently tolerate denial of its most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment. Only last year the Court itself recognized that the purpose of the exclusionary rule “is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.”
Indeed, we are aware of no restraint, similar to that rejected today, conditioning the enforcement of any other basic constitutional right. The right to privacy, no less important than any other right carefully and particularly reserved to the people, would stand in marked contrast to all other rights declared as “basic to a free society.” This Court has not hesitated to enforce as strictly against the States as it does against the Federal Government the rights of free speech and of a free press, the rights to notice and to a fair, public trial, including, as it does, the right not to be convicted by use of a coerced confession, however logically relevant it be, and without regard to its reliability. And nothing could be more certain that that when a coerced confession is involved, “the relevant rules of evidence” are overridden without regard to “the incidence of such conduct by the police,” slight or frequent. Why should not the same rule apply to what is tantamount to coerced testimony by way of unconstitutional seizure of goods, papers, effect, documents, etc.? We find that, as to the Federal Government, the Fourth and Fifth Amendments and, as to the States, the freedom from unconscionable invasions of privacy and the freedom from convictions based upon coerced confessions do enjoy an “intimate relation” in their perpetuation of “principles of humanity and civil liberty [secured] … only after years of struggle.” They express “supplementing phases of the same constitutional purpose—to maintain inviolate large areas of personal privacy.” The philosophy of each Amendment and of each freedom is complementary to, although not dependent upon, that of the other in its sphere of influence—the very least that together they assure in either sphere is that no man is to be convicted on unconstitutional evidence.
V
Moreover, our holding that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments is not only the logical dictate of prior cases, but it also makes very good sense. There is no war between the Constitution and common sense. Presently, a federal prosecutor may make no use of evidence illegally seized, but a State’s attorney across the street may, although he supposedly is operating under the enforceable prohibitions of the same Amendment. Thus the State, by admitting evidence unlawfully seized, serves to encourage disobedience to the Federal Constitution which it is bound to uphold. Moreover, “[t]he very essence of a healthy federalism depends upon the avoidance of needless conflict between state and federal courts.” In non-exclusionary States, federal officers, being human, were by it invited to and did, as our cases indicate, step across the street to the State’s attorney with their unconstitutionally seized evidence. Prosecution on the basis of that evidence was then had in a state court in utter disregard of the enforceable Fourth Amendment. If the fruits of an unconstitutional search had been inadmissible in both state and federal courts, this inducement to evasion would have been sooner eliminated.
Federal-state cooperation in the solution of crime under constitutional standards will be promoted, if only by recognition of their now mutual obligation to respect the same fundamental criteria in their approaches. “However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness.” Denying shortcuts to only one of two cooperating law enforcement agencies tends naturally to breed legitimate suspicion of “working arrangements” whose results are equally tainted.
There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine “[t]he criminal is to go free because the constable has blundered.” In some cases this will undoubtedly be the result. But [] “there is another consideration—the imperative of judicial integrity.” The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U.S.438, 485 (1928): “Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. … If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Nor can it lightly be assumed that, as a practical matter, adoption of the exclusionary rule fetters law enforcement. Only last year this Court expressly considered that contention and found that “pragmatic evidence of a sort” to the contrary was not wanting. The Court noted that
“The federal courts themselves have operated under the exclusionary rule of Weeks for almost half a century; yet it has not been suggested either that the Federal Bureau of Investigation has thereby been rendered ineffective, or that the administration of criminal justice in the federal courts has thereby been disrupted. Moreover, the experience of the states is impressive. … The movement towards the rule of exclusion has been halting but seemingly inexorable.”
The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.
The judgment of the Supreme Court of Ohio is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.
Mr. Justice BLACK, concurring.
I am still not persuaded that the Fourth Amendment, standing alone, would be enough to bar the introduction into evidence against an accused of papers and effects seized from him in violation of its commands. For the Fourth Amendment does not itself contain any provision expressly precluding the use of such evidence, and I am extremely doubtful that such a provision could properly be inferred from nothing more than the basic command against unreasonable searches and seizures. Reflection on the problem, however, in the light of cases coming before the Court since Wolf, has led me to conclude that when the Fourth Amendment’s ban against unreasonable searches and seizures is considered together with the Fifth Amendment’s ban against compelled self-incrimination, a constitutional basis emerges which not only justifies but actually requires the exclusionary rule.
The courts of the country are entitled to know with as much certainty as possible what scope they cover. The Court’s opinion, in my judgment, dissipates the doubt and uncertainty in this field of constitutional law and I am persuaded, for this and other reasons stated, to depart from my prior views, to accept the Boyd doctrine as controlling in this state case and to join the Court’s judgment and opinion which are in accordance with that constitutional doctrine.
Mr. Justice DOUGLAS, concurring.
We held in Wolf v. People of State of Colorado that the Fourth Amendment was applicable to the States by reason of the Due Process Clause of the Fourteenth Amendment. But a majority held that the exclusionary rule of the Weeks case was not required of the States, that they could apply such sanctions as they chose. That position had the necessary votes to carry the day. But with all respect it was not the voice of reason or principle. As stated in the Weeks case, if evidence seized in violation of the Fourth Amendment can be used against an accused, “his right to be secure against such searches and seizures, is of no value, and … might as well be stricken from the Constitution.”
When we allowed States to give constitutional sanction to the “shabby business” of unlawful entry into a home, we did indeed rob the Fourth Amendment of much meaningful force. There are, of course, other theoretical remedies. One is disciplinary action within the hierarchy of the police system, including prosecution of the police officer for a crime. Yet, “[s]elf-scrutiny is a lofty ideal, but its exaltation reaches new heights if we expect a District Attorney to prosecute himself or his associates for well-meaning violations of the search and seizure clause during a raid the District Attorney or his associates have ordered.”
The only remaining remedy, if exclusion of the evidence is not required, is an action of trespass by the homeowner against the offending officer. Mr. Justice Murphy showed how onerous and difficult it would be for the citizen to maintain that action and how meagre the relief even if the citizen prevails. The truth is that trespass actions against officers who make unlawful searches and seizures are mainly illusory remedies.
Without judicial action making the exclusionary rule applicable to the States, Wolf v. People of State of Colorado in practical effect reduced the guarantee against unreasonable searches and seizures to “a dead letter.”
Memorandum of Mr. Justice STEWART.
Agreeing fully with Part I of Mr. Justice HARLAN’S dissenting opinion, I express no view as to the merits of the constitutional issue which the Court today decides. I would, however, reverse the judgment in this case, because I am persuaded that the provision of § 2905.34 of the Ohio Revised Code, upon which the petitioner’s conviction was based, is, in the words of Mr. Justice HARLAN, not “consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment.”
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice WHITTAKER join, dissenting.
In overruling the Wolf case the Court, in my opinion, has forgotten the sense of judicial restraint which, with due regard for stare decisis, is one element that should enter into deciding whether a past decision of this Court should be overruled. Apart from that I also believe that the Wolf rule represents sounder Constitutional doctrine than the new rule which now replaces it.
From the Court’s statement of the case one would gather that the central, if not controlling, issue on this appeal is whether illegally state-seized evidence is Constitutionally admissible in a state prosecution, an issue which would of course face us with the need for re-examining Wolf. However, such is not the situation. For, although that question was indeed raised here and below among appellant’s subordinate points, the new and pivotal issue brought to the Court by this appeal is whether § 2905.34 of the Ohio Revised Code making criminal the mere knowing possession or control of obscene material, and under which appellant has been convicted, is consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment. That was the principal issue which was decided by the Ohio Supreme Court, which was tendered by appellant’s Jurisdictional Statement, and which was briefed and argued in this Court.
In this posture of things, I think it fair to say that five members of this Court have simply “reached out” to overrule Wolf. With all respect for the views of the majority, and recognizing that stare decisis carries different weight in Constitutional adjudication than it does in nonconstitutional decision, I can perceive no justification for regarding this case as an appropriate occasion for re-examining Wolf.
The action of the Court finds no support in the rule that decision of Constitutional issues should be avoided wherever possible. For in overruling Wolf the Court, instead of passing upon the validity of Ohio’s § 2905.34, has simply chosen between two Constitutional questions. Moreover, I submit that it has chosen the more difficult and less appropriate of the two questions. The Ohio statute which, as construed by the State Supreme Court, punishes knowing possession or control of obscene material, irrespective of the purposes of such possession or control (with exceptions not here applicable) and irrespective of whether the accused had any reasonable opportunity to rid himself of the material after discovering that it was obscene, surely presents a Constitutional question which is both simpler and less far-reaching than the question which the Court decides today. It seems to me that justice might well have been done in this case without overturning a decision on which the administration of criminal law in many of the States has long justifiably relied.
Since the demands of the case before us do not require us to reach the question of the validity of Wolf, I think this case furnishes a singularly inappropriate occasion for reconsideration of that decision, if reconsideration is indeed warranted. Even the most cursory examination will reveal that the doctrine of the Wolf case has been of continuing importance in the administration of state criminal law. Indeed, certainly as regards its “nonexclusionary” aspect, Wolf did no more than articulate the then existing assumption among the States that the federal cases enforcing the exclusionary rule “do not bind [the States], for they construe provisions of the federal Constitution, the Fourth and Fifth Amendments, not applicable to the states.”
The occasion which the Court has taken here is in the context of a case where the question was briefed not at all and argued only extremely tangentially. The unwisdom of overruling Wolf without full-dress argument is aggravated by the circumstance that that decision is a comparatively recent one (1949) to which three members of the present majority have at one time or other expressly subscribed, one to be sure with explicit misgivings. I would think that our obligation to the States, on whom we impose this new rule, as well as the obligation of orderly adherence to our own processes would demand that we seek that aid which adequate briefing and argument lends to the determination of an important issue. It certainly has never been a postulate of judicial power that mere altered disposition, or subsequent membership on the Court, is sufficient warrant for overturning a deliberately decided rule of Constitutional law.
Thus, if the Court were bent on reconsidering Wolf, I think that there would soon have presented itself an appropriate opportunity in which we could have had the benefit of full briefing and argument. In any event, at the very least, the present case should have been set down for reargument, in view of the inadequate briefing and argument we have received on the Wolf point. To all intents and purposes the Court’s present action amounts to a summary reversal of Wolf, without argument.
I am bound to say that what has been done is not likely to promote respect either for the Court’s adjudicatory process or for the stability of its decisions. Having been unable, however, to persuade any of the majority to a different procedural course, I now turn to the merits of the present decision.
Essential to the majority’s argument against Wolf is the proposition that the rule of Weeks v. United States, excluding in federal criminal trials the use of evidence obtained in violation of the Fourth Amendment, derives not from the “supervisory power” of this Court over the federal judicial system, but from Constitutional requirement. This is so because no one, I suppose, would suggest that this Court possesses any general supervisory power over the state courts.
At the heart of the majority’s opinion in this case is the following syllogism: (1) the rule excluding in federal criminal trials evidence which is the product of all illegal search and seizure is a “part and parcel” of the Fourth Amendment; (2) Wolf held that the “privacy” assured against federal action by the Fourth Amendment is also protected against state action by the Fourteenth Amendment; and (3) it is therefore “logically and constitutionally necessary” that the Weeks exclusionary rule should also be enforced against the States.
This reasoning ultimately rests on the unsound premise that because Wolf carried into the States, as part of “the concept of ordered liberty” embodied in the Fourteenth Amendment, the principle of “privacy” underlying the Fourth Amendment, it must follow that whatever configurations of the Fourth Amendment have been developed in the particularizing federal precedents are likewise to be deemed a part of “ordered liberty,” and as such are enforceable against the States. For me, this does not follow at all.
The preservation of a proper balance between state and federal responsibility in the administration of criminal justice demands patience on the part of those who might like to see things move faster among the States in this respect. Problems of criminal law enforcement vary widely from State of State. One State, in considering the totality of its legal picture, may conclude that the need for embracing the Weeks rule is pressing because other remedies are unavailable or inadequate to secure compliance with the substantive Constitutional principle involved. Another, though equally solicitous of Constitutional rights, may choose to pursue one purpose at a time, allowing all evidence relevant to guilt to be brought into a criminal trial, and dealing with Constitutional infractions by other means. Still another may consider the exclusionary rule too rough-and-ready a remedy, in that it reaches only unconstitutional intrusions which eventuate in criminal prosecution of the victims. Further, a State after experimenting with the Weeks rule for a time may, because of unsatisfactory experience with it, decide to revert to a non-exclusionary rule. And so on. From the standpoint of Constitutional permissibility in pointing a State in one direction or another, I do not see at all why “time has set its face against” the considerations which led Mr. Justice Cardozo, then chief judge of the New York Court of Appeals, to reject the Weeks exclusionary rule. For us the question remains, as it has always been, one of state power, not one of passing judgment on the wisdom of one state course or another. In my view this Court should continue to forbear from fettering the States with an adamant rule which may embarrass them in coping with their own peculiar problems in criminal law enforcement.
I do not believe that the Fourteenth Amendment empowers this Court to mould state remedies effectuating the right to freedom from “arbitrary intrusion by the police” to suit its own notions of how things should be done.
In conclusion, it should be noted that the majority opinion in this case is in fact an opinion only for the judgment overruling Wolf, and not for the basic rationale by which four members of the majority have reached that result. For my Brother BLACK is unwilling to subscribe to their view that the Weeks exclusionary rule derives from the Fourth Amendment itself, but joins the majority opinion on the premise that its end result can be achieved by bringing the Fifth Amendment to the aid of the Fourth.
I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights. But in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason.
Notes, Comments, and Questions
Dollree Mapp, who objected so vigorously to the search of her home in 1957, lived until 2014.2 Her obituary reported that after being convicted of drug possession in New York in 1971, “she pursued a series of appeals, claiming that the search warrant used in her arrest had been wrongly issued and that the police had targeted her because of her role in Mapp v. Ohio.”
The Justices debated two main questions in Mapp v. Ohio: First, would imposing the exclusionary rule on the states be good policy? Second, does the Court have authority under the Constitution to impose it?
Scholars writing under the banner of “originalism” have argued that the Court lacked authority to hold as it did in Mapp. See, e.g., John O. McGinnis & Michael B. Rappaport, Reconciling Originalism and Precedent, 103 Nw. U. L. Rev. 803, 806, 850-53 (2009) (“under our theory, the Supreme Court could appropriately discard a substantial portion of current constitutional criminal procedure, such as the exclusionary rule”); Stephen G. Calabresi, “Introduction,” in Originalism: A Quarter-Century of Debate (Stephen G. Calabresi, ed. 2007), at 1, 39-40 (listing, among “good consequences that would flow from adopting originalism,” that “[w]e would be better off if criminals never got out of jail because of the idiocy of the exclusionary rule”); but see Akhil Reed Amar, “Panel on Originalism and Precedent,” in id., at 210-11 (“And yet none of the supposedly originalist justices on the Supreme Court reject the exclusionary rule. Even Justices Scalia and Thomas exclude evidence pretty regularly, and do not ever quite tell us why they do so when it means abandoning the original meaning of the Fourth Amendment.”).
In a provocative essay, Judge Guido Calabresi argues that the exclusionary rule has perverse effects, including encouraging false testimony by police. In particular, he suggests that because finding a constitutional violation—such as an illegal search—often requires a judge to free a dangerous criminal, judges err on the side of finding no violation. “Judges—politicians’ claims to the contrary notwithstanding—are not in the business of letting people out on technicalities. If anything, judges are in the business of keeping people who are guilty in on technicalities. … [Judges do] not like the idea of dangerous criminals being released into society. This means that in any close case, a judge will decide that the search, the seizure, or the invasion of privacy was reasonable. That case then becomes precedent for the next case.”3 After acknowledging that alternative methods of “controlling the police in this area simply do not work,” Judge Calabresi proposes an odd scheme by which convicted defendants could win reduced sentences by proving after trial that the prosecution used illegally-obtained evidence to convict them.4
Professor Yale Kamisar presented a more straightforward defense of the exclusionary rule, arguing that the rule’s survival should not depend on an “empirical evaluation of its efficacy in deterring police misconduct.”5 Instead, the “imperative of judicial integrity,”6 requires the exclusion of evidence obtained in violation of the constitution.
Professor Kamisar next recounted an anecdote that helped him to appreciate the importance of Mapp, which he recalled as having “caused much grumbling in police ranks” in Minnesota.7 In response to the grumbling, the state’s attorney general reminded police officers that “the language of the Fourth Amendment is identical to the [search and seizure provision] of the Minnesota State Constitution” and that in terms of substantive law—that is, what police are and are not allowed to do—“Mapp did not alter one word of either the state or national constitutions,” nor had it reduced lawful “police powers one iota.”8 Professor Kamisar reported also that after the attorney general’s speech, “proponents of the exclusionary rule quoted [his] remarks and made explicit what those remarks implied: If the police feared that evidence they were gathering in the customary manner would now be excluded by the courts, the police must have been violating the guarantee against unreasonable search and seizure all along.”
Professor Kamisar then recounted how a police officer reacted to the insinuation of longstanding officer misbehavior:
“No officer lied upon the witness stand. If you were asked how you got your evidence you told the truth. You had broken down a door or pried a window open … often we picked locks. … The Supreme Court of Minnesota sustained this time after time. … [The] judiciary okayed it; they knew what the facts were.”9
In other words, Professor Kamisar wrote, the “police departments … reacted to the adoption of the exclusionary rule as if the guarantees against unreasonable search and seizure had just been written.”10
Noting that police in other jurisdictions reacted in the same way he had observed in Minnesota, Professor Kamisar quoted the chief of the Los Angeles Police Department, who “warned that his department’s ‘ability to prevent the commission of crime has been greatly diminished’ because henceforth his officers would be unable to take ‘affirmative action’ unless and until they possessed ‘sufficient information to constitute probable cause.’”11 Similarly, the commissioner of police in New York City reported that in the wake of Mapp, “[r]etraining sessions had to be held from the very top administrators down to each of the thousands of foot patrolmen and detectives engaged in the daily basic enforcement function.” These sessions covered information not taught to the officers when they first joined the force; the NYPD “was immediately caught up in the entire problem of reevaluating our procedures … and modifying, amending and creating new policies and new instructions for the implementation of Mapp.”12
If one takes the contemporary statements of police department leaders at face value, Mapp inspired far greater attention to search and seizure law than had previously existed in police departments across the United States.
In our next chapter, we review more recent case law. The Court has limited the application of the exclusionary rule to cases involving particularly egregious official misconduct. This causes less evidence—and fewer cases—to be lost because of judicial intervention. It also, however, decreases the deterrent effect of the rule. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/04%3A_The_Exclusionary_Rule/4.01%3A_Chapter_31_-_Introduction_to_the_Exclusionary_Rule.txt |
THE EXCLUSIONARY RULE
When Does the Exclusionary Rule Apply?
The exclusionary rule has lasted more than a century in federal court and more than half a century in the courts of the states. Time has not dulled the controversy created by the rule. Although recent Supreme Court opinions devote relatively little time to debating the constitutional underpinnings of the rule, the Justices continue to argue over the rule’s utility. In particular, twenty-first century exclusionary rule cases have contested the costs (measured in the loss of relevant, reliable evidence) and benefits (measured in deterrence of official misconduct, particularly the kind that violates constitutional rights). Recent cases have narrowed the scope of the rule—applying it to less misconduct than was covered in the decades after Mapp v. Ohio—but have not abolished it. Defendants retain powerful incentives to seek the exclusion of evidence, especially in cases of brazen police misconduct and when there are clear violations of well-established rights.
In our next case, the Court considered whether violations of the knock-and-announce rule—covered in Chapter 7—justify the exclusion of evidence found during a police search.
Supreme Court of the United States
Booker T. Hudson, Jr. v. Michigan
Decided June 15, 2006 – 547 U.S. 586
Justice SCALIA delivered the opinion of the Court.
We decide whether violation of the “knock-and-announce” rule requires the suppression of all evidence found in the search.
I
Police obtained a warrant authorizing a search for drugs and firearms at the home of petitioner Booker Hudson. They discovered both. Large quantities of drugs were found, including cocaine rocks in Hudson’s pocket. A loaded gun was lodged between the cushion and armrest of the chair in which he was sitting. Hudson was charged under Michigan law with unlawful drug and firearm possession.
This case is before us only because of the method of entry into the house. When the police arrived to execute the warrant, they announced their presence, but waited only a short time—perhaps “three to five seconds”—before turning the knob of the unlocked front door and entering Hudson’s home. Hudson moved to suppress all the inculpatory evidence, arguing that the premature entry violated his Fourth Amendment rights.
The Michigan trial court granted his motion. On interlocutory review, the Michigan Court of Appeals reversed, relying on Michigan Supreme Court cases holding that suppression is inappropriate when entry is made pursuant to warrant but without proper “‘knock and announce.’” The Michigan Supreme Court denied leave to appeal. Hudson was convicted of drug possession. He renewed his Fourth Amendment claim on appeal, but the Court of Appeals rejected it and affirmed the conviction. The Michigan Supreme Court again declined review. We granted certiorari.
II
[It was undisputed that the entry was a knock-and-announce violation.]
A
In Weeks v. United States, we adopted the federal exclusionary rule for evidence that was unlawfully seized from a home without a warrant in violation of the Fourth Amendment. We began applying the same rule to the States, through the Fourteenth Amendment, in Mapp v. Ohio.
Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates “substantial social costs,” which sometimes include setting the guilty free and the dangerous at large. We have therefore been “cautio[us] against expanding” it and “have repeatedly emphasized that the rule’s ‘costly toll’ upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application.” We have rejected “[i]ndiscriminate application” of the rule and have held it to be applicable only “where its remedial objectives are thought most efficaciously served”—that is, “where its deterrence benefits outweigh its ‘substantial social costs.’”
“[W]hether the exclusionary sanction is appropriately imposed in a particular case … is ‘an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.’” In other words, exclusion may not be premised on the mere fact that a constitutional violation was a “but-for” cause of obtaining evidence. Our cases show that but-for causality is only a necessary, not a sufficient, condition for suppression. In this case, of course, the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence. Whether that preliminary misstep had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house. But even if the illegal entry here could be characterized as a but-for cause of discovering what was inside, we have “never held that evidence is ‘fruit of the poisonous tree’ simply because ‘it would not have come to light but for the illegal actions of the police.’” Rather, but-for cause, or “causation in the logical sense alone,” can be too attenuated to justify exclusion.
Attenuation can occur, of course, when the causal connection is remote. Attenuation also occurs when, even given a direct causal connection, the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained. “The penalties visited upon the Government, and in turn upon the public, because its officers have violated the law must bear some relation to the purposes which the law is to serve.”
For this reason, cases excluding the fruits of unlawful warrantless searches say nothing about the appropriateness of exclusion to vindicate the interests protected by the knock-and-announce requirement. Until a valid warrant has issued, citizens are entitled to shield “their persons, houses, papers, and effects” from the government’s scrutiny. Exclusion of the evidence obtained by a warrantless search vindicates that entitlement. The interests protected by the knock-and-announce requirement are quite different—and do not include the shielding of potential evidence from the government’s eyes.
One of those interests is the protection of human life and limb, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident. Another interest is the protection of property. Breaking a house (as the old cases typically put it) absent an announcement would penalize someone who “‘did not know of the process, of which, if he had notice, it is to be presumed that he would obey it ….’” The knock-and-announce rule gives individuals “the opportunity to comply with the law and to avoid the destruction of property occasioned by a forcible entry.” And thirdly, the knock-and-announce rule protects those elements of privacy and dignity that can be destroyed by a sudden entrance. It gives residents the “opportunity to prepare themselves for” the entry of the police. “The brief interlude between announcement and entry with a warrant may be the opportunity that an individual has to pull on clothes or get out of bed.” In other words, it assures the opportunity to collect oneself before answering the door.
What the knock-and-announce rule has never protected, however, is one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.
B
Quite apart from the requirement of unattenuated causation, the exclusionary rule has never been applied except “where its deterrence benefits outweigh its ‘substantial social costs.’” The costs here are considerable. In addition to the grave adverse consequence that exclusion of relevant incriminating evidence always entails (viz., the risk of releasing dangerous criminals into society), imposing that massive remedy for a knock-and-announce violation would generate a constant flood of alleged failures to observe the rule, and claims that any asserted Richards [v. Wisconsin (Chapter 7)] justification for a no-knock entry had inadequate support. The cost of entering this lottery would be small, but the jackpot enormous: suppression of all evidence, amounting in many cases to a get-out-of-jail-free card. Courts would experience as never before the reality that “[t]he exclusionary rule frequently requires extensive litigation to determine whether particular evidence must be excluded.” Unlike the warrant or Miranda requirements, compliance with which is readily determined (either there was or was not a warrant; either the Miranda warning was given, or it was not), what constituted a “reasonable wait time” in a particular case, (or, for that matter, how many seconds the police in fact waited), or whether there was “reasonable suspicion” of the sort that would invoke the Richards exceptions, is difficult for the trial court to determine and even more difficult for an appellate court to review.
Another consequence of the incongruent remedy Hudson proposes would be police officers’ refraining from timely entry after knocking and announcing. As we have observed, the amount of time they must wait is necessarily uncertain. If the consequences of running afoul of the rule were so massive, officers would be inclined to wait longer than the law requires—producing preventable violence against officers in some cases, and the destruction of evidence in many others. We deemed these consequences severe enough to produce our unanimous agreement that a mere “reasonable suspicion” that knocking and announcing “under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime,” will cause the requirement to yield.
Next to these “substantial social costs” we must consider the deterrence benefits, existence of which is a necessary condition for exclusion. (It is not, of course, a sufficient condition: “[I]t does not follow that the Fourth Amendment requires adoption of every proposal that might deter police misconduct.”) To begin with, the value of deterrence depends upon the strength of the incentive to commit the forbidden act. Viewed from this perspective, deterrence of knock-and-announce violations is not worth a lot. Violation of the warrant requirement sometimes produces incriminating evidence that could not otherwise be obtained. But ignoring knock-and-announce can realistically be expected to achieve absolutely nothing except the prevention of destruction of evidence and the avoidance of life-threatening resistance by occupants of the premises—dangers which, if there is even “reasonable suspicion” of their existence, suspend the knock-and-announce requirement anyway. Massive deterrence is hardly required.
In sum, the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial—incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified.
For the foregoing reasons we affirm the judgment of the Michigan Court of Appeals.
Justice KENNEDY, concurring in part and concurring in the judgment.
Two points should be underscored with respect to today’s decision. First, the knock-and-announce requirement protects rights and expectations linked to ancient principles in our constitutional order. The Court’s decision should not be interpreted as suggesting that violations of the requirement are trivial or beyond the law’s concern. Second, the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt. Today’s decision determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to justify suppression.
As to the basic right in question, privacy and security in the home are central to the Fourth Amendment’s guarantees as explained in our decisions and as understood since the beginnings of the Republic. This common understanding ensures respect for the law and allegiance to our institutions, and it is an instrument for transmitting our Constitution to later generations undiminished in meaning and force. It bears repeating that it is a serious matter if law enforcement officers violate the sanctity of the home by ignoring the requisites of lawful entry. Security must not be subject to erosion by indifference or contempt.
Our system, as the Court explains, has developed procedures for training police officers and imposing discipline for failures to act competently and lawfully. If those measures prove ineffective, they can be fortified with more detailed regulations or legislation. Supplementing these safeguards are civil remedies that provide restitution for discrete harms. These remedies apply to all violations, including, of course, exceptional cases in which unannounced entries cause severe fright and humiliation.
Today’s decision does not address any demonstrated pattern of knock-and-announce violations. If a widespread pattern of violations were shown, and particularly if those violations were committed against persons who lacked the means or voice to mount an effective protest, there would be reason for grave concern. Even then, however, the Court would have to acknowledge that extending the remedy of exclusion to all the evidence seized following a knock-and-announce violation would mean revising the requirement of causation that limits our discretion in applying the exclusionary rule. That type of extension also would have significant practical implications, adding to the list of issues requiring resolution at the criminal trial questions such as whether police officers entered a home after waiting 10 seconds or 20.
In this case the relevant evidence was discovered not because of a failure to knock and announce, but because of a subsequent search pursuant to a lawful warrant. The Court in my view is correct to hold that suppression was not required.
Justice BREYER, with whom Justice STEVENS, Justice SOUTER, and Justice GINSBURG join, dissenting.
In Wilson v. Arkansas (Chapter 7), a unanimous Court held that the Fourth Amendment normally requires law enforcement officers to knock and announce their presence before entering a dwelling. Today’s opinion holds that evidence seized from a home following a violation of this requirement need not be suppressed.
As a result, the Court destroys the strongest legal incentive to comply with the Constitution’s knock-and-announce requirement. And the Court does so without significant support in precedent. At least I can find no such support in the many Fourth Amendment cases the Court has decided in the near century since it first set forth the exclusionary principle in Weeks v. United States.
Today’s opinion is thus doubly troubling. It represents a significant departure from the Court’s precedents. And it weakens, perhaps destroys, much of the practical value of the Constitution’s knock-and-announce protection.
It is not surprising [] that after looking at virtually every pertinent Supreme Court case decided since Weeks, I can find no precedent that might offer the majority support for its contrary conclusion. The Court has, of course, recognized that not every Fourth Amendment violation necessarily triggers the exclusionary rule. But the class of Fourth Amendment violations that do not result in suppression of the evidence seized, however, is limited.
The Court has declined to apply the exclusionary rule only:
(1) where there is a specific reason to believe that application of the rule would “not result in appreciable deterrence,” or
(2) where admissibility in proceedings other than criminal trials was at issue.
Neither of these two exceptions applies here. The second does not apply because this case is an ordinary criminal trial. The first does not apply because (1) officers who violate the rule are not acting “as a reasonable officer would and should act in similar circumstances,” (2) this case does not involve government employees other than police, and (3), most importantly, the key rationale for any exception, “lack of deterrence,” is missing. That critical latter rationale, which underlies every exception, does not apply here, as there is no reason to think that, in the case of knock-and-announce violations by the police, “the exclusion of evidence at trial would not sufficiently deter future errors,” or “‘further the ends of the exclusionary rule in any appreciable way.’”
I am aware of no other basis for an exception. The Court has decided more than 300 Fourth Amendment cases since Weeks. The Court has found constitutional violations in nearly a third of them. The nature of the constitutional violation varies. In most instances officers lacked a warrant; in others, officers possessed a warrant based on false affidavits; in still others, the officers executed the search in an unconstitutional manner. But in every case involving evidence seized during an illegal search of a home (federally since Weeks, nationally since Mapp), the Court, with the exceptions mentioned, has either explicitly or implicitly upheld (or required) the suppression of the evidence at trial. In not one of those cases did the Court “questio[n], in the absence of a more efficacious sanction, the continued application of the [exclusionary] rule to suppress evidence from the State’s case” in a criminal trial.
I can find nothing persuasive in the majority’s opinion that could justify its refusal to apply the rule. It certainly is not a justification for an exception here (as the majority finds) to find odd instances in other areas of law that do not automatically demand suppression. Nor can it justify an exception to say that some police may knock at the door anyway (to avoid being mistaken for a burglar), for other police (believing quick entry is the most secure, effective entry) will not voluntarily do so.
Neither can the majority justify its failure to respect the need for deterrence, as set forth consistently in the Court’s prior case law, through its claim of “‘substantial social costs’”—at least if it means that those “‘social costs’” are somehow special here. The only costs it mentions are those that typically accompany any use of the Fourth Amendment’s exclusionary principle. In fact, the “no-knock” warrants that are provided by many States, by diminishing uncertainty, may make application of the knock-and-announce principle less “‘cost[ly]’” on the whole than application of comparable Fourth Amendment principles, such as determining whether a particular warrantless search was justified by exigency. The majority’s “substantial social costs” argument is an argument against the Fourth Amendment’s exclusionary principle itself. And it is an argument that this Court, until now, has consistently rejected.
* * *
The Court in Hudson v. Michigan reasoned that the police would have found the evidence anyway (even without the Fourth Amendment violation), and Justice Kennedy concurred that there was no evidence of widespread knock-and-announce violations across the land. Although the decision answered only a fairly narrow question—the availability of the exclusionary rule in knock-and-announce cases—its reasoning foreshadowed a further reduction of the scope of the exclusionary rule.
The next case answers the question of whether ordinary negligence by police—if it results in a violation of constitutional rights—is sufficient to trigger the exclusionary rule, or if instead more culpable misconduct is required.
Supreme Court of the United States
Bennie Dean Herring v. United States
Decided Jan. 14, 2009 – 555 U.S. 135
Chief Justice ROBERTS delivered the opinion of the Court.
The Fourth Amendment forbids “unreasonable searches and seizures,” and this usually requires the police to have probable cause or a warrant before making an arrest. What if an officer reasonably believes there is an outstanding arrest warrant, but that belief turns out to be wrong because of a negligent bookkeeping error by another police employee? The parties here agree that the ensuing arrest is still a violation of the Fourth Amendment, but dispute whether contraband found during a search incident to that arrest must be excluded in a later prosecution.
Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence.
I
On July 7, 2004, Investigator Mark Anderson learned that Bennie Dean Herring had driven to the Coffee County Sheriff’s Department to retrieve something from his impounded truck. Herring was no stranger to law enforcement, and Anderson asked the county’s warrant clerk, Sandy Pope, to check for any outstanding warrants for Herring’s arrest. When she found none, Anderson asked Pope to check with Sharon Morgan, her counterpart in neighboring Dale County. After checking Dale County’s computer database, Morgan replied that there was an active arrest warrant for Herring’s failure to appear on a felony charge. Pope relayed the information to Anderson and asked Morgan to fax over a copy of the warrant as confirmation. Anderson and a deputy followed Herring as he left the impound lot, pulled him over, and arrested him. A search incident to the arrest revealed methamphetamine in Herring’s pocket, and a pistol (which as a felon he could not possess) in his vehicle.
There had, however, been a mistake about the warrant. The Dale County sheriff’s computer records are supposed to correspond to actual arrest warrants, which the office also maintains. But when Morgan went to the files to retrieve the actual warrant to fax to Pope, Morgan was unable to find it. She called a court clerk and learned that the warrant had been recalled five months earlier. Normally when a warrant is recalled the court clerk’s office or a judge’s chambers calls Morgan, who enters the information in the sheriff’s computer database and disposes of the physical copy. For whatever reason, the information about the recall of the warrant for Herring did not appear in the database. Morgan immediately called Pope to alert her to the mixup, and Pope contacted Anderson over a secure radio. This all unfolded in 10 to 15 minutes, but Herring had already been arrested and found with the gun and drugs, just a few hundred yards from the sheriff’s office.
Herring was indicted in the District Court for the Middle District of Alabama for illegally possessing the gun and drugs. He moved to suppress the evidence on the ground that his initial arrest had been illegal because the warrant had been rescinded. The Magistrate Judge recommended denying the motion because the arresting officers had acted in a good-faith belief that the warrant was still outstanding. Thus, even if there were a Fourth Amendment violation, there was “no reason to believe that application of the exclusionary rule here would deter the occurrence of any future mistakes.” The District Court adopted the Magistrate Judge’s recommendation, and the Court of Appeals for the Eleventh Circuit affirmed.
Other courts have required exclusion of evidence obtained through similar police errors so we granted Herring’s petition for certiorari to resolve the conflict. We now affirm the Eleventh Circuit’s judgment.
II
When a probable-cause determination was based on reasonable but mistaken assumptions, the person subjected to a search or seizure has not necessarily been the victim of a constitutional violation. The very phrase “probable cause” confirms that the Fourth Amendment does not demand all possible precision. And whether the error can be traced to a mistake by a state actor or some other source may bear on the analysis. For purposes of deciding this case, however, we accept the parties’ assumption that there was a Fourth Amendment violation. The issue is whether the exclusionary rule should be applied.
A
In analyzing the applicability of the [exclusionary] rule, we must consider the actions of all the police officers involved. The Coffee County officers did nothing improper. Indeed, the error was noticed so quickly because Coffee County requested a faxed confirmation of the warrant.
The Eleventh Circuit concluded, however, that somebody in Dale County should have updated the computer database to reflect the recall of the arrest warrant. The court also concluded that this error was negligent, but did not find it to be reckless or deliberate. That fact is crucial to our holding that this error is not enough by itself to require “the extreme sanction of exclusion.”
B
The fact that a Fourth Amendment violation occurred—i.e., that a search or arrest was unreasonable—does not necessarily mean that the exclusionary rule applies. Indeed, exclusion “has always been our last resort, not our first impulse,” and our precedents establish important principles that constrain application of the exclusionary rule.
First, the exclusionary rule is not an individual right and applies only where it “‘result[s] in appreciable deterrence.’” We have repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth Amendment violation. Instead we have focused on the efficacy of the rule in deterring Fourth Amendment violations in the future.
In addition, the benefits of deterrence must outweigh the costs. “We have never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence.” “[T]o the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against [its] substantial social costs.” The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free—something that “offends basic concepts of the criminal justice system.” “[T]he rule’s costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application.”
We [have] held that a mistake made by a judicial employee could not give rise to exclusion for three reasons: The exclusionary rule was crafted to curb police rather than judicial misconduct; court employees were unlikely to try to subvert the Fourth Amendment; and “most important, there [was] no basis for believing that application of the exclusionary rule in [those] circumstances” would have any significant effect in deterring the errors.
The extent to which the exclusionary rule is justified by these deterrence principles varies with the culpability of the law enforcement conduct. “[A]n assessment of the flagrancy of the police misconduct constitutes an important step in the calculus” of applying the exclusionary rule. Similarly, in Krull we elaborated that “evidence should be suppressed ‘only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.’”1
Anticipating the good-faith exception to the exclusionary rule, Judge Friendly wrote that “[t]he beneficent aim of the exclusionary rule to deter police misconduct can be sufficiently accomplished by a practice … outlawing evidence obtained by flagrant or deliberate violation of rights.”
Indeed, the abuses that gave rise to the exclusionary rule featured intentional conduct that was patently unconstitutional. An error that arises from nonrecurring and attenuated negligence is thus far removed from the core concerns that led us to adopt the rule in the first place.
To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.
[T]his case concern[s] false information provided by police. [] [T]he miscommunications occurred [] after the warrant had been issued and recalled—but that fact should not require excluding the evidence obtained.
The pertinent analysis of deterrence and culpability is objective, not an “inquiry into the subjective awareness of arresting officers.” We have already held that “our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal” in light of “all of the circumstances.” These circumstances frequently include a particular officer’s knowledge and experience, but that does not make the test any more subjective than the one for probable cause, which looks to an officer’s knowledge and experience but not his subjective intent.
We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule. In this case, however, the conduct at issue was not so objectively culpable as to require exclusion. If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation. Petitioner’s fears that our decision will cause police departments to deliberately keep their officers ignorant are thus unfounded.
Petitioner’s claim that police negligence automatically triggers suppression cannot be squared with the principles underlying the exclusionary rule, as they have been explained in our cases. In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not “pay its way.” In such a case, the criminal should not “go free because the constable has blundered.” The judgment of the Court of Appeals for the Eleventh Circuit is affirmed.
Justice GINSBURG, with whom Justice STEVENS, Justice SOUTER, and Justice BREYER join, dissenting.
Petitioner Bennie Dean Herring was arrested, and subjected to a search incident to his arrest, although no warrant was outstanding against him, and the police lacked probable cause to believe he was engaged in criminal activity. The arrest and ensuing search therefore violated Herring’s Fourth Amendment right “to be secure … against unreasonable searches and seizures.” The Court of Appeals so determined, and the Government does not contend otherwise. The exclusionary rule provides redress for Fourth Amendment violations by placing the government in the position it would have been in had there been no unconstitutional arrest and search. The rule thus strongly encourages police compliance with the Fourth Amendment in the future. The Court, however, holds the rule inapplicable because careless recordkeeping by the police—not flagrant or deliberate misconduct—accounts for Herring’s arrest.
I would not so constrict the domain of the exclusionary rule and would hold the rule dispositive of this case: “[I]f courts are to have any power to discourage [police] error of [the kind here at issue], it must be through the application of the exclusionary rule.” The unlawful search in this case was contested in court because the police found methamphetamine in Herring’s pocket and a pistol in his truck. But the “most serious impact” of the Court’s holding will be on innocent persons “wrongfully arrested based on erroneous information [carelessly maintained] in a computer data base.”
The sole question presented [] is whether evidence the police obtained through the unlawful search should have been suppressed. In my view, the Court’s opinion underestimates the need for a forceful exclusionary rule and the gravity of recordkeeping errors in law enforcement.
The Court states that the exclusionary rule is not a defendant’s right; rather, it is simply a remedy applicable only when suppression would result in appreciable deterrence that outweighs the cost to the justice system.
The Court’s discussion invokes a view of the exclusionary rule famously held by renowned jurists Henry J. Friendly and Benjamin Nathan Cardozo. Over 80 years ago, Cardozo, then seated on the New York Court of Appeals, commented critically on the federal exclusionary rule, which had not yet been applied to the States. He suggested that in at least some cases the rule exacted too high a price from the criminal justice system. In words often quoted, Cardozo questioned whether the criminal should “go free because the constable has blundered.”
Judge Friendly later elaborated on Cardozo’s query. “The sole reason for exclusion,” Friendly wrote, “is that experience has demonstrated this to be the only effective method for deterring the police from violating the Constitution.” He thought it excessive, in light of the rule’s aim to deter police conduct, to require exclusion when the constable had merely “blundered”—when a police officer committed a technical error in an on-the-spot judgment, or made a “slight and unintentional miscalculation.” [] Judge Friendly suggested that deterrence of police improprieties could be “sufficiently accomplished” by confining the rule to “evidence obtained by flagrant or deliberate violation of rights.”
Others have described “a more majestic conception” of the Fourth Amendment and its adjunct, the exclusionary rule. Protective of the fundamental “right of the people to be secure in their persons, houses, papers, and effects,” the Amendment “is a constraint on the power of the sovereign, not merely on some of its agents.” I share that vision of the Amendment.
The exclusionary rule is “a remedy necessary to ensure that” the Fourth Amendment’s prohibitions “are observed in fact.” The rule’s service as an essential auxiliary to the Amendment earlier inclined the Court to hold the two inseparable.
Beyond doubt, a main objective of the rule “is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” But the rule also serves other important purposes: It “enabl[es] the judiciary to avoid the taint of partnership in official lawlessness,” and it “assur[es] the people—all potential victims of unlawful government conduct—that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government.”
The exclusionary rule, it bears emphasis, is often the only remedy effective to redress a Fourth Amendment violation. Civil liability will not lie for “the vast majority of [F]ourth [A]mendment violations—the frequent infringements motivated by commendable zeal, not condemnable malice.” Criminal prosecutions or administrative sanctions against the offending officers and injunctive relief against widespread violations are an even farther cry.
The Court maintains that Herring’s case is one in which the exclusionary rule could have scant deterrent effect and therefore would not “pay its way.” I disagree.
The exclusionary rule, the Court suggests, is capable of only marginal deterrence when the misconduct at issue is merely careless, not intentional or reckless. The suggestion runs counter to a foundational premise of tort law—that liability for negligence, i.e., lack of due care, creates an incentive to act with greater care.
That the mistake here involved the failure to make a computer entry hardly means that application of the exclusionary rule would have minimal value. “Just as the risk of respondeat superior liability encourages employers to supervise … their employees’ conduct [more carefully], so the risk of exclusion of evidence encourages policymakers and systems managers to monitor the performance of the systems they install and the personnel employed to operate those systems.”
Consider the potential impact of a decision applying the exclusionary rule in this case. As earlier observed, the record indicates that there is no electronic connection between the warrant database of the Dale County Sheriff’s Department and that of the County Circuit Clerk’s office, which is located in the basement of the same building. When a warrant is recalled, one of the “many different people that have access to th[e] warrants,” must find the hard copy of the warrant in the “two or three different places” where the Department houses warrants, return it to the Clerk’s office, and manually update the Department’s database. The record reflects no routine practice of checking the database for accuracy, and the failure to remove the entry for Herring’s warrant was not discovered until Investigator Anderson sought to pursue Herring five months later. Is it not altogether obvious that the Department could take further precautions to ensure the integrity of its database? The Sheriff’s Department “is in a position to remedy the situation and might well do so if the exclusionary rule is there to remove the incentive to do otherwise.”
Is the potential deterrence here worth the costs it imposes? In light of the paramount importance of accurate recordkeeping in law enforcement, I would answer yes, and next explain why, as I see it, Herring’s motion presents a particularly strong case for suppression.
Electronic databases form the nervous system of contemporary criminal justice operations. In recent years, their breadth and influence have dramatically expanded. Police today can access databases that include not only the updated National Crime Information Center (NCIC), but also terrorist watchlists, the Federal Government’s employee eligibility system, and various commercial databases. Moreover, States are actively expanding information sharing between jurisdictions. As a result, law enforcement has an increasing supply of information within its easy electronic reach.
The risk of error stemming from these databases is not slim. Herring’s amici warn that law enforcement databases are insufficiently monitored and often out of date. Government reports describe, for example, flaws in NCIC databases, terrorist watchlist databases, and databases associated with the Federal Government’s employment eligibility verification system.
Inaccuracies in expansive, interconnected collections of electronic information raise grave concerns for individual liberty. “The offense to the dignity of the citizen who is arrested, handcuffed, and searched on a public street simply because some bureaucrat has failed to maintain an accurate computer data base” is evocative of the use of general warrants that so outraged the authors of our Bill of Rights.
Negligent recordkeeping errors by law enforcement threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means. Such errors present no occasion to further erode the exclusionary rule. The rule “is needed to make the Fourth Amendment something real; a guarantee that does not carry with it the exclusion of evidence obtained by its violation is a chimera.” In keeping with the rule’s “core concerns,” suppression should have attended the unconstitutional search in this case.
For the reasons stated, I would reverse the judgment of the Eleventh Circuit.
Justice BREYER, with whom Justice SOUTER joins, dissenting.
I agree with Justice GINSBURG and join her dissent. I write separately to note one additional supporting factor that I believe important. In Arizona v. Evans, we held that recordkeeping errors made by a court clerk do not trigger the exclusionary rule, so long as the police reasonably relied upon the court clerk’s recordkeeping. The rationale for our decision was premised on a distinction between judicial errors and police errors.
Distinguishing between police recordkeeping errors and judicial ones not only is consistent with our precedent, but also is far easier for courts to administer than the Court’s case-by-case, multifactored inquiry into the degree of police culpability. I therefore would apply the exclusionary rule when police personnel are responsible for a recordkeeping error that results in a Fourth Amendment violation.
Notes, Comments, and Questions
Many criminal procedure issues are litigated concurrently in multiple forums. For example, when deciding Miranda v. Arizona, the Court also resolved additional cases presenting the same question about custodial interrogation. Because most cases never reach the Supreme Court, it is common for two cases to present the same issue, for the Court to take only one of them, and for the Court’s decision of that case to resolve the other case. For example, imagine that on the same day that police scanned the home of Danny Lee Kyllo, other officers conducting an unrelated investigation scanned a different home, and the resident of that home sought exclusion of items found during an ensuing search. If the Court decided Kyllo v. United States (Chapter 3) while the second case was pending, the defendant in the second case could rely upon the holding of Kyllo. In other words, the Court’s decision that thermal imaging of a home is a “search” would apply to all pending cases in which the issue was presented, and the judge in the second case would know that the second defendant’s home had been “searched” for Fourth Amendment purposes.
In Davis v. United States, the Court considered how the exclusionary rule should apply to situations like our hypothetical second thermal imaging case. Could the second defendant exclude evidence, just as Kyllo did? Or would the second case somehow be treated differently?
Supreme Court of the United States
Willie Gene Davis v. United States
Decided June 16, 2011 – 564 U.S. 229
Justice ALITO delivered the opinion of the Court.
The Fourth Amendment protects the right to be free from “unreasonable searches and seizures,” but it is silent about how this right is to be enforced. To supplement the bare text, this Court created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation. The question here is whether to apply this sanction when the police conduct a search in compliance with binding precedent that is later overruled. Because suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety, we hold that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.
I
The question presented arises in this case as a result of a shift in our Fourth Amendment jurisprudence on searches of automobiles incident to arrests of recent occupants.
A
[The Court recounted its jurisprudence regarding searches of automobiles incident to lawful arrests. The search in this case occurred before the Court overruled New York v. Belton in Arizona v. Gant (Chapter 10). The rule set forth in Gant states that “an automobile search incident to a recent occupant’s arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains ‘evidence relevant to the crime of arrest.’”]
B
The search at issue in this case took place a full two years before this Court announced its new rule in Gant. On an April evening in 2007, police officers in Greenville, Alabama, conducted a routine traffic stop that eventually resulted in the arrests of driver Stella Owens (for driving while intoxicated) and passenger Willie Davis (for giving a false name to police). The police handcuffed both Owens and Davis, and they placed the arrestees in the back of separate patrol cars. The police then searched the passenger compartment of Owens’s vehicle and found a revolver inside Davis’s jacket pocket.
Davis was indicted in the Middle District of Alabama on one count of possession of a firearm by a convicted felon. In his motion to suppress the revolver, Davis acknowledged that the officers’ search fully complied with “existing Eleventh Circuit precedent.” Like most courts, the Eleventh Circuit had long read Belton to establish a bright-line rule authorizing substantially contemporaneous vehicle searches incident to arrests of recent occupants. Davis recognized that the District Court was obligated to follow this precedent, but he raised a Fourth Amendment challenge to preserve “the issue for review” on appeal. The District Court denied the motion, and Davis was convicted on the firearms charge.
While Davis’s appeal was pending, this Court decided Gant. The Eleventh Circuit, in the opinion below, applied Gant’s new rule and held that the vehicle search incident to Davis’s arrest “violated [his] Fourth Amendment rights.” As for whether this constitutional violation warranted suppression, the Eleventh Circuit viewed that as a separate issue that turned on “the potential of exclusion to deter wrongful police conduct.” The court concluded that “penalizing the [arresting] officer” for following binding appellate precedent would do nothing to “dete[r] … Fourth Amendment violations.” It therefore declined to apply the exclusionary rule and affirmed Davis’s conviction. We granted certiorari.
II
[T]he exclusionary rule [] is a “prudential” doctrine created by this Court to “compel respect for the constitutional guaranty.” Exclusion is “not a personal constitutional right,” nor is it designed to “redress the injury” occasioned by an unconstitutional search. The rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations. Our cases have thus limited the rule’s operation to situations in which this purpose is “thought most efficaciously served.” Where suppression fails to yield “appreciable deterrence,” exclusion is “clearly … unwarranted.”
Real deterrent value is a “necessary condition for exclusion,” but it is not “a sufficient” one. The analysis must also account for the “substantial social costs” generated by the rule. Exclusion exacts a heavy toll on both the judicial system and society at large. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. Our cases hold that society must swallow this bitter pill when necessary, but only as a “last resort.” For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.
Admittedly, there was a time when our exclusionary-rule cases were not nearly so discriminating in their approach to the doctrine. “Expansive dicta” in several decisions suggested that the rule was a self-executing mandate implicit in the Fourth Amendment itself. As late as [] 1971[,] the Court “treated identification of a Fourth Amendment violation as synonymous with application of the exclusionary rule.” In time, however, we came to acknowledge the exclusionary rule for what it undoubtedly is—a “judicially created remedy” of this Court’s own making. We abandoned the old, “reflexive” application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits. [W]e also recalibrated our cost-benefit analysis in exclusion cases to focus the inquiry on the “flagrancy of the police misconduct” at issue.
[T]he deterrence benefits of exclusion “var[y] with the culpability of the law enforcement conduct” at issue. When the police exhibit “deliberate,” “reckless,” or “grossly negligent” disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. But when the police act with an objectively “reasonable good-faith belief” that their conduct is lawful, or when their conduct involves only simple, “isolated” negligence, the “‘deterrence rationale loses much of its force,’” and exclusion cannot “pay its way.”
III
The question in this case is whether to apply the exclusionary rule when the police conduct a search in objectively reasonable reliance on binding judicial precedent. At the time of the search at issue here, we had not yet decided Arizona v. Gant, and the Eleventh Circuit had interpreted our decision in New York v. Belton to establish a bright-line rule authorizing the search of a vehicle’s passenger compartment incident to a recent occupant’s arrest. Although the search turned out to be unconstitutional under Gant, all agree that the officers’ conduct was in strict compliance with then-binding Circuit law and was not culpable in any way.
Under our exclusionary-rule precedents, this acknowledged absence of police culpability dooms Davis’s claim. Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield “meaningfu[l]” deterrence, and culpable enough to be “worth the price paid by the justice system.” The conduct of the officers here was neither of these things. The officers who conducted the search did not violate Davis’s Fourth Amendment rights deliberately, recklessly, or with gross negligence. Nor does this case involve any “recurring or systemic negligence” on the part of law enforcement. The police acted in strict compliance with binding precedent, and their behavior was not wrongful. Unless the exclusionary rule is to become a strict-liability regime, it can have no application in this case.
Indeed, in 27 years of practice under [the] good-faith exception, we have “never applied” the exclusionary rule to suppress evidence obtained as a result of nonculpable, innocent police conduct. If the police in this case had reasonably relied on a warrant in conducting their search, or on an erroneous warrant record in a government database, the exclusionary rule would not apply. And if Congress or the Alabama Legislature had enacted a statute codifying the precise holding of the Eleventh Circuit’s decision, we would swiftly conclude that “‘[p]enalizing the officer for the legislature’s error … cannot logically contribute to the deterrence of Fourth Amendment violations.’” The same should be true of Davis’s attempt here to “‘[p]enaliz[e] the officer for the [appellate judges’] error.’”
About all that exclusion would deter in this case is conscientious police work. Responsible law-enforcement officers will take care to learn “what is required of them” under Fourth Amendment precedent and will conform their conduct to these rules. But by the same token, when binding appellate precedent specifically authorizes a particular police practice, well-trained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities. An officer who conducts a search in reliance on binding appellate precedent does no more than “‘ac[t] as a reasonable officer would and should act’” under the circumstances. The deterrent effect of exclusion in such a case can only be to discourage the officer from “‘do[ing] his duty.’”
That is not the kind of deterrence the exclusionary rule seeks to foster. We have stated before, and we reaffirm today, that the harsh sanction of exclusion “should not be applied to deter objectively reasonable law enforcement activity.” Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.
B
Davis [] contends that applying the good-faith exception to searches conducted in reliance on binding precedent will stunt the development of Fourth Amendment law. With no possibility of suppression, criminal defendants will have no incentive, Davis maintains, to request that courts overrule precedent.
This argument is difficult to reconcile with our modern understanding of the role of the exclusionary rule. We have never held that facilitating the overruling of precedent is a relevant consideration in an exclusionary-rule case. Rather, we have said time and again that the sole purpose of the exclusionary rule is to deter misconduct by law enforcement.
We have also repeatedly rejected efforts to expand the focus of the exclusionary rule beyond deterrence of culpable police conduct.
Davis argues that Fourth Amendment precedents of this Court will be effectively insulated from challenge under a good-faith exception for reliance on appellate precedent. But this argument is overblown. For one thing, it is important to keep in mind that this argument applies to an exceedingly small set of cases. Decisions overruling this Court’s Fourth Amendment precedents are rare. Indeed, it has been more than 40 years since the Court last handed down a decision of the type to which Davis refers. And even in those cases, Davis points out that no fewer than eight separate doctrines may preclude a defendant who successfully challenges an existing precedent from getting any relief. Moreover, as a practical matter, defense counsel in many cases will test this Court’s Fourth Amendment precedents in the same way that Belton was tested in Gant—by arguing that the precedent is distinguishable.
At most, Davis’s argument might suggest that—to prevent Fourth Amendment law from becoming ossified—the petitioner in a case that results in the overruling of one of this Court’s Fourth Amendment precedents should be given the benefit of the victory by permitting the suppression of evidence in that one case. Such a result would undoubtedly be a windfall to this one random litigant. But the exclusionary rule is “not a personal constitutional right.” It is a “judicially created” sanction specifically designed as a “windfall” remedy to deter future Fourth Amendment violations. The good-faith exception is a judicially created exception to this judicially created rule. Therefore, in a future case, we could, if necessary, recognize a limited exception to the good-faith exception for a defendant who obtains a judgment over-ruling one of our Fourth Amendment precedents.
But this is not such a case. Davis did not secure a decision overturning a Supreme Court precedent; the police in his case reasonably relied on binding Circuit precedent. That sort of blameless police conduct, we hold, comes within the good-faith exception and is not properly subject to the exclusionary rule.
It is one thing for the criminal “to go free because the constable has blundered.” It is quite another to set the criminal free because the constable has scrupulously adhered to governing law. Excluding evidence in such cases deters no police misconduct and imposes substantial social costs. We therefore hold that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply. The judgment of the Court of Appeals for the Eleventh Circuit is [a]ffirmed.
Justice SOTOMAYOR, concurring in the judgment.
Under our precedents, the primary purpose of the exclusionary rule is “to deter future Fourth Amendment violations.” Accordingly, we have held, application of the exclusionary rule is unwarranted when it “‘does not result in appreciable deterrence.’” In the circumstances of this case, where “binding appellate precedent specifically authorize[d] a particular police practice,” in accord with the holdings of nearly every other court in the country—application of the exclusionary rule cannot reasonably be expected to yield appreciable deterrence. I am thus compelled to conclude that the exclusionary rule does not apply in this case and to agree with the Court’s disposition.
This case does not present the markedly different question whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled. As we previously recognized in deciding whether to apply a Fourth Amendment holding retroactively, when police decide to conduct a search or seizure in the absence of case law (or other authority) specifically sanctioning such action, exclusion of the evidence obtained may deter Fourth Amendment violations.
As stated, whether exclusion would result in appreciable deterrence in the circumstances of this case is a different question from whether exclusion would appreciably deter Fourth Amendment violations when the governing law is unsettled. The Court’s answer to the former question in this case thus does not resolve the latter one.
Justice BREYER, with whom Justice GINSBURG joins, dissenting.
In 2009, in Arizona v. Gant, this Court held that a police search of an automobile without a warrant violates the Fourth Amendment if the police have previously removed the automobile’s occupants and placed them securely in a squad car. The present case involves these same circumstances, and it was pending on appeal when this Court decided Gant. Because Gant represents a “shift” in the Court’s Fourth Amendment jurisprudence, we must decide [] how Gant’s new rule applies here.
While conceding that, like the search in Gant, this search violated the Fourth Amendment, it holds that, unlike Gant, this defendant is not entitled to a remedy. That is because the Court finds a new “good faith” exception which prevents application of the normal remedy for a Fourth Amendment violation, namely, suppression of the illegally seized evidence. Leaving Davis with a right but not a remedy, the Court “keep[s] the word of promise to our ear” but “break[s] it to our hope.”
At this point I can no longer agree with the Court. A new “good faith” exception and this Court’s retroactivity decisions are incompatible. For one thing, the Court’s distinction between (1) retroactive application of a new rule and (2) availability of a remedy is highly artificial and runs counter to precedent. To determine that a new rule is retroactive is to determine that, at least in the normal case, there is a remedy. As we have previously said, the “source of a ‘new rule’ is the Constitution itself, not any judicial power to create new rules of law”; hence, “[w]hat we are actually determining when we assess the ‘retroactivity’ of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.” The Court’s “good faith” exception (unlike, say, inevitable discovery, a remedial doctrine that applies only upon occasion) creates “a categorical bar to obtaining redress” in every case pending when a precedent is overturned.
The Court says that its exception applies where there is “objectively reasonable” police “reliance on binding appellate precedent.” But to apply the term “binding appellate precedent” often requires resolution of complex questions of degree. Davis conceded that he faced binding anti-Gant precedent in the Eleventh Circuit. But future litigants will be less forthcoming. Indeed, those litigants will now have to create distinctions to show that previous Circuit precedent was not “binding” lest they find relief foreclosed even if they win their constitutional claim.
At the same time, Fourth Amendment precedents frequently require courts to “slosh” their “way through the factbound morass of ‘reasonableness.’” Suppose an officer’s conduct is consistent with the language of a Fourth Amendment rule that a court of appeals announced in a case with clearly distinguishable facts? Suppose the case creating the relevant precedent did not directly announce any general rule but involved highly analogous facts? What about a rule that all other jurisdictions, but not the defendant’s jurisdiction, had previously accepted? What rules can be developed for determining when, where, and how these different kinds of precedents do, or do not, count as relevant “binding precedent”?
Another such problem concerns fairness. Today’s holding [] “violates basic norms of constitutional adjudication.” It treats the defendant in a case announcing a new rule one way while treating similarly situated defendants whose cases are pending on appeal in a different way.
Of course, the Court may, as it suggests, avoid this unfairness by refusing to apply the exclusionary rule even to the defendant in the very case in which it announces a “new rule.” But that approach would make matters worse. What would then happen in the lower courts? How would courts of appeals, for example, come to reconsider their prior decisions when other circuits’ cases lead them to believe those decisions may be wrong? Why would a defendant seek to overturn any such decision? After all, if the (incorrect) circuit precedent is clear, then even if the defendant wins (on the constitutional question), he loses (on relief). To what extent then could this Court rely upon lower courts to work out Fourth Amendment differences among themselves—through circuit reconsideration of a precedent that other circuits have criticized?
Perhaps more important, the Court’s rationale for creating its new “good faith” exception threatens to undermine well-settled Fourth Amendment law. The Court correctly says that pre-Gant Eleventh Circuit precedent had held that a Gant-type search was constitutional; hence the police conduct in this case, consistent with that precedent, was “innocent.” But the Court then finds this fact sufficient to create a new “good faith” exception to the exclusionary rule. It reasons that the “sole purpose” of the exclusionary rule “is to deter future Fourth Amendment violations.” Those benefits are sufficient to justify exclusion where “police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights.” But those benefits do not justify exclusion where, as here, the police act with “simple, isolated negligence” or an “objectively reasonable good-faith belief that their conduct is lawful.”
If the Court means what it says, what will happen to the exclusionary rule, a rule that the Court adopted nearly a century ago for federal courts and made applicable to state courts a half century ago through the Fourteenth Amendment? The Court has thought of that rule not as punishment for the individual officer or as reparation for the individual defendant but more generally as an effective way to secure enforcement of the Fourth Amendment’s commands. This Court has deviated from the “suppression” norm in the name of “good faith” only a handful of times and in limited, atypical circumstances: where a magistrate has erroneously issued a warrant; where a database has erroneously informed police that they have a warrant; and where an unconstitutional statute purported to authorize the search.
The fact that such exceptions are few and far between is understandable. Defendants frequently move to suppress evidence on Fourth Amendment grounds. In many, perhaps most, of these instances the police, uncertain of how the Fourth Amendment applied to the particular factual circumstances they faced, will have acted in objective good faith. Yet, in a significant percentage of these instances, courts will find that the police were wrong. And, unless the police conduct falls into one of the exceptions previously noted, courts have required the suppression of the evidence seized.
But an officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable than an officer who follows erroneous “binding precedent.” Nor is an officer more culpable where circuit precedent is simply suggestive rather than “binding,” where it only describes how to treat roughly analogous instances, or where it just does not exist. Thus, if the Court means what it now says, if it would place determinative weight upon the culpability of an individual officer’s conduct, and if it would apply the exclusionary rule only where a Fourth Amendment violation was “deliberate, reckless, or grossly negligent,” then the “good faith” exception will swallow the exclusionary rule. Indeed, our broad dicta in Herring—dicta the Court repeats and expands upon today—may already be leading lower courts in this direction. Today’s decision will doubtless accelerate this trend.
Any such change (which may already be underway) would affect not “an exceedingly small set of cases,” but a very large number of cases, potentially many thousands each year. And since the exclusionary rule is often the only sanction available for a Fourth Amendment violation, the Fourth Amendment would no longer protect ordinary Americans from “unreasonable searches and seizures.” It would become a watered-down Fourth Amendment, offering its protection against only those searches and seizures that are egregiously unreasonable.
In sum, I fear that the Court’s opinion will undermine the exclusionary rule.
For these reasons, with respect, I dissent.
* * *
For our next chapter, we will study who has “standing” to invoke the exclusionary rule, as well as exceptions the Court has established to limit the rule’s application. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/04%3A_The_Exclusionary_Rule/4.02%3A_Chapter_32_-_When_Does_the_Exclusionary_Rule_Apply.txt |
THE EXCLUSIONARY RULE
Exclusionary Rule: Standing and Exceptions
The Court has used broad language to describe the exclusionary rule. In Weeks v. United States, after describing police misconduct, the Court wrote, “If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.” In Mapp v. Ohio, the Court wrote, “We hold that all evidence obtained by searches and seizures in violation of the Constitution is … inadmissible in a state court.”
It turns out, however, that the Court has not applied the exclusionary rule to “all evidence obtained … in violation of the Constitution.” Instead, the Court has limited the availability of the remedy in multiple ways. In this chapter, we will consider who has “standing” to invoke the rule, as well as situations in which the Court has established exceptions to the rule’s applicability.
Who Can Invoke the Exclusionary Rule?
In a series of cases, the Court has considered who has the ability to use the exclusionary rule. It has been argued that any defendant should be able to exclude evidence obtained in violation of some person’s constitutional right. Rather than allow such broad access to the remedy of exclusion, the Court has required greater connection between the wrongful state action and the person invoking the rule. Although the ability to invoke the rule is often called “standing,” the Justices have occasionally objected to that term of art. Regardless of what word is used to describe the legal status at issue, the question is who can exclude evidence under the rule.
Supreme Court of the United States
Rakas v. Illinois
Decided Dec. 5, 1978 – 439 U.S. 128
Mr. Justice REHNQUIST delivered the opinion of the Court.
Petitioners were convicted of armed robbery in the Circuit Court of Kankakee County, Ill., and their convictions were affirmed on appeal. At their trial, the prosecution offered into evidence a sawed-off rifle and rifle shells that had been seized by police during a search of an automobile in which petitioners had been passengers. Neither petitioner is the owner of the automobile and neither has ever asserted that he owned the rifle or shells seized. The Illinois Appellate Court held that petitioners lacked standing to object to the allegedly unlawful search and seizure and denied their motion to suppress the evidence. We granted certiorari in light of the obvious importance of the issues raised to the administration of criminal justice and now affirm.
I
Because we are not here concerned with the issue of probable cause, a brief description of the events leading to the search of the automobile will suffice. A police officer on a routine patrol received a radio call notifying him of a robbery of a clothing store in Bourbonnais, Ill., and describing the getaway car. Shortly thereafter, the officer spotted an automobile which he thought might be the getaway car. After following the car for some time and after the arrival of assistance, he and several other officers stopped the vehicle. The occupants of the automobile, petitioners and two female companions, were ordered out of the car and, after the occupants had left the car, two officers searched the interior of the vehicle. They discovered a box of rifle shells in the glove compartment, which had been locked, and a sawed-off rifle under the front passenger seat. After discovering the rifle and the shells, the officers took petitioners to the station and placed them under arrest.
Before trial petitioners moved to suppress the rifle and shells seized from the car on the ground that the search violated the Fourth and Fourteenth Amendments. They conceded that they did not own the automobile and were simply passengers; the owner of the car had been the driver of the vehicle at the time of the search. Nor did they assert that they owned the rifle or the shells seized. The prosecutor challenged petitioners’ standing to object to the lawfulness of the search of the car because neither the car, the shells nor the rifle belonged to them. The trial court agreed that petitioners lacked standing and denied the motion to suppress the evidence. On appeal after petitioners’ conviction, the Appellate Court of Illinois, Third Judicial District, affirmed the trial court’s denial of petitioners’ motion to suppress.
II
Petitioners first urge us to relax or broaden the rule of standing so that any criminal defendant at whom a search was “directed” would have standing to contest the legality of that search and object to the admission at trial of evidence obtained as a result of the search. Alternatively, petitioners argue that they have standing to object to the search because they were “legitimately on [the] premises” at the time of the search.
The concept of standing [in Fourth Amendment cases] focuses on whether the person seeking to challenge the legality of a search as a basis for suppressing evidence was himself the “victim” of the search or seizure. Adoption of the so-called “target” theory advanced by petitioners would in effect permit a defendant to assert that a violation of the Fourth Amendment rights of a third party entitled him to have evidence suppressed at his trial. [W]e are not at all sure that the determination of a motion to suppress is materially aided by labeling the inquiry as one of standing, rather than simply recognizing it as one involving the substantive question of whether or not the proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge.
A
We decline to extend the rule of standing in Fourth Amendment cases in the manner suggested by petitioners. “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule’s protections.
When we are urged to grant standing to a criminal defendant to assert a violation, not of his own constitutional rights but of someone else’s, we cannot but give weight to practical difficulties. Conferring standing to raise vicarious Fourth Amendment claims would necessarily mean a more widespread invocation of the exclusionary rule during criminal trials.
Each time the exclusionary rule is applied it exacts a substantial social cost for the vindication of Fourth Amendment rights. Relevant and reliable evidence is kept from the trier of fact and the search for truth at trial is deflected. Since our cases generally have held that one whose Fourth Amendment rights are violated may successfully suppress evidence obtained in the course of an illegal search and seizure, misgivings as to the benefit of enlarging the chapter of persons who may invoke that rule are properly considered when deciding whether to expand standing.
B
Had we accepted petitioners’ request to allow persons other than those whose own Fourth Amendment rights were violated by a challenged search and seizure to suppress evidence obtained in the course of such police activity, it would be appropriate to retain [] use of standing in Fourth Amendment analysis. Under petitioners’ target theory, a court could determine that a defendant had standing to invoke the exclusionary rule without having to inquire into the substantive question of whether the challenged search or seizure violated the Fourth Amendment rights of that particular defendant. However, having rejected petitioners’ target theory, [] the question necessarily arises whether it serves any useful analytical purpose to consider this principle a matter of standing, distinct from the merits of a defendant’s Fourth Amendment claim. We can think of no decided cases of this Court that would have come out differently had we concluded, as we do now, that the type of standing requirement [] reaffirmed today is more properly subsumed under substantive Fourth Amendment doctrine. Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of “standing,” will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same. But we think the better analysis forthrightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.
It should be emphasized that nothing we say here casts the least doubt on cases which recognize that, as a general proposition, the issue of standing involves two inquiries: first, whether the proponent of a particular legal right has alleged “injury in fact,” and, second, whether the proponent is asserting his own legal rights and interests rather than basing his claim for relief upon the rights of third parties. But this Court’s long history of insistence that Fourth Amendment rights are personal in nature has already answered many of these traditional standing inquiries, and we think that definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.
Analyzed in these terms, the question is whether the challenged search or seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.
D
[P]etitioners’ claims must fail. They asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized. And [] the fact that they were “legitimately on [the] premises” in the sense that they were in the car with the permission of its owner is not determinative of whether they had a legitimate expectation of privacy in the particular areas of the automobile searched. [H]ere petitioners’ claim is one which would fail even in an analogous situation in a dwelling place, since they made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers. Like the trunk of an automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy.
III
The Illinois courts were therefore correct in concluding that it was unnecessary to decide whether the search of the car might have violated the rights secured to someone else by the Fourth and Fourteenth Amendments to the United States Constitution. Since it did not violate any rights of these petitioners, their judgment of conviction is [a]ffirmed.
Notes, Comments, and Questions
In Byrd v. United States, 138 S. Ct. 1518 (2018), the Court addressed whether rental car drivers who are not on a rental agreement (for example, someone given the keys by the person who is authorized to drive) have standing to object to a search of the car. The Court distinguished Rakas by emphasizing the reasonable expectation of privacy test. In Byrd, the unauthorized driver was the only person in the car and had a reasonable expectation of privacy in the contents of the car sufficient to have standing.
In Minnesota v. Olson, 495 U.S. 91 (1990), the Court considered the “warrantless, nonconsensual entry into a house where respondent Robert Olson was an overnight guest.” The question was whether the entry, along with Olson’s subsequent arrest, violated Olson’s Fourth Amendment rights. The Court decided yes and allowed Olson to exclude evidence found during the illegal search and seizure. Rejecting the state’s argument that Olson had no reasonable expectation of privacy because the searched location was not his “home,” the Court concluded “that Olson’s status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable.” The Court noted that one’s expectation of privacy while staying as an overnight guest must equal, if not exceed, that enjoyed by a person using a telephone booth. See Katz v. United States (Chapter 2).
Several years later, the Court applied the rule of Olson to a very different sort of guest.
Supreme Court of the United States
Minnesota v. Wayne Thomas Carter
Decided Dec. 1, 1998 – 525 U.S. 83
Chief Justice REHNQUIST delivered the opinion of the Court.
Respondents and the lessee of an apartment were sitting in one of its rooms, bagging cocaine. While so engaged they were observed by a police officer, who looked through a drawn window blind. The Supreme Court of Minnesota held that the officer’s viewing was a search that violated respondents’ Fourth Amendment rights. We hold that no such violation occurred.
James Thielen, a police officer in the Twin Cities’ suburb of Eagan, Minnesota, went to an apartment building to investigate a tip from a confidential informant. The informant said that he had walked by the window of a ground-floor apartment and had seen people putting a white powder into bags. The officer looked in the same window through a gap in the closed blind and observed the bagging operation for several minutes. He then notified headquarters, which began preparing affidavits for a search warrant while he returned to the apartment building. When two men left the building in a previously identified Cadillac, the police stopped the car. Inside were respondents Carter and Johns. As the police opened the door of the car to let Johns out, they observed a black, zippered pouch and a handgun, later determined to be loaded, on the vehicle’s floor. Carter and Johns were arrested, and a later police search of the vehicle the next day discovered pagers, a scale, and 47 grams of cocaine in plastic sandwich bags.
After seizing the car, the police returned to Apartment 103 and arrested the occupant, Kimberly Thompson, who is not a party to this appeal. A search of the apartment pursuant to a warrant revealed cocaine residue on the kitchen table and plastic baggies similar to those found in the Cadillac. Thielen identified Carter, Johns, and Thompson as the three people he had observed placing the powder into baggies. The police later learned that while Thompson was the lessee of the apartment, Carter and Johns lived in Chicago and had come to the apartment for the sole purpose of packaging the cocaine. Carter and Johns had never been to the apartment before and were only in the apartment for approximately 2 ½ hours. In return for the use of the apartment, Carter and Johns had given Thompson one-eighth of an ounce of the cocaine.
Carter and Johns were charged with conspiracy to commit a controlled substance crime in the first degree and aiding and abetting in a controlled substance crime in the first degree. They moved to suppress all evidence obtained from the apartment and the Cadillac, as well as to suppress several postarrest incriminating statements they had made. They argued that Thielen’s initial observation of their drug packaging activities was an unreasonable search in violation of the Fourth Amendment and that all evidence obtained as a result of this unreasonable search was inadmissible as fruit of the poisonous tree. After a trial, Carter and Johns were each convicted of both offenses. The Minnesota Court of Appeals held that respondent Carter did not have “standing” to object to Thielen’s actions.
A divided Minnesota Supreme Court reversed, holding that respondents had “standing” to claim the protection of the Fourth Amendment because they had “‘a legitimate expectation of privacy in the invaded place.’” We granted certiorari and now reverse.
The Minnesota courts analyzed whether respondents had a legitimate expectation of privacy under the rubric of “standing” doctrine, an analysis that this Court expressly rejected 20 years ago in Rakas.
The text of the [Fourth] Amendment suggests that its protections extend only to people in “their” houses. But we have held that in some circumstances a person may have a legitimate expectation of privacy in the house of someone else.
In Jones v. United States, 362 U.S. 257 (1960), the defendant seeking to exclude evidence resulting from a search of an apartment had been given the use of the apartment by a friend. He had clothing in the apartment, had slept there “‘maybe a night,’” and at the time was the sole occupant of the apartment. But while the holding of Jones—that a search of the apartment violated the defendant’s Fourth Amendment rights—is still valid, its statement that “anyone legitimately on the premises where a search occurs may challenge its legality” was expressly repudiated in Rakas. Thus, an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not.
Respondents here were obviously not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours. There is no suggestion that they had a previous relationship with Thompson, or that there was any other purpose to their visit. While the apartment was a dwelling place for Thompson, it was for these respondents simply a place to do business.
[T]he purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder, all lead us to conclude that respondents’ situation is closer to that of one simply permitted on the premises. We therefore hold that any search which may have occurred did not violate their Fourth Amendment rights.
Because we conclude that respondents had no legitimate expectation of privacy in the apartment, we need not decide whether the police officer’s observation constituted a “search.” The judgments of the Supreme Court of Minnesota are accordingly reversed, and the cause is remanded for proceedings not inconsistent with this opinion.
Notes, Comments, and Questions
Would a guest who was present for dinner or an afternoon barbecue have standing? Why or why not? That individual would have more connection to the home than in Carter but less than Minnesota v. Olson.
In Brendlin v. California, 551 U.S. 249 (2007), the Court applied the holdings of Olson and Carter to the case of a passenger riding in a car stopped by police. Prior precedent made clear that a driver whose car is subjected to a traffic stop is “seized within the meaning of the Fourth Amendment” and could challenge the admissibility of evidence found during an unlawful stop. The question was whether a passenger in the same car could also exclude evidence. Quoting language from United States v. Mendenhall (Chapter 19) stating that “a seizure occurs if ‘in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,’” the Brendlin Court found that a vehicle “stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver,” and it rejected “any notion that a [reasonable] passenger would feel free to leave, or to terminate the personal encounter any other way, without advance permission.”
The Court held that passengers could invoke the exclusionary rule with respect to evidence found during unlawful vehicle stops, noting that the opposite result would encourage bad police behavior. “The fact that evidence uncovered as a result of an arbitrary traffic stop would still be admissible against any passengers would be a powerful incentive to run the kind of ‘roving patrols’ that would still violate the driver’s Fourth Amendment right.”
Because Brendlin argued that his rights were violated by the unlawful stop of the car—as opposed to by the search of the car—his claim was not barred by the rule of Rakas v. Illinois.
Exceptions to the Exclusionary Rule
Even if a criminal defendant has standing to invoke the exclusionary rule, not all evidence found as a result of police violating the defendant’s constitutional rights will be excluded. The following cases build upon the limitations to the exclusionary rule described in the previous chapter. In Murray v. United States, the Court applies what is known as the “independent source doctrine.”
Supreme Court of the United States
Michael F. Murray v. United States
Decided June 27, 1988 – 487 U.S. 533
Justice SCALIA delivered the opinion of the Court.
In Segura v. United States, 468 U.S. 796 (1984), we held that police officers’ illegal entry upon private premises did not require suppression of evidence subsequently discovered at those premises when executing a search warrant obtained on the basis of information wholly unconnected with the initial entry. In [this] case[] we are faced with the question whether, again assuming evidence obtained pursuant to an independently obtained search warrant, the portion of such evidence that had been observed in plain view at the time of a prior illegal entry must be suppressed.
I
[The case] arises out of the conviction of petitioner Michael F. Murray, petitioner James D. Carter, and others for conspiracy to possess and distribute illegal drugs. Insofar as relevant for our purposes, the facts are as follows: Based on information received from informants, federal law enforcement agents had been surveilling petitioner Murray and several of his co-conspirators. At about 1:45 p.m. on April 6, 1983, they observed Murray drive a truck and Carter drive a green camper, into a warehouse in South Boston. When the petitioners drove the vehicles out about 20 minutes later, the surveilling agents saw within the warehouse two individuals and a tractor-trailer rig bearing a long, dark container. Murray and Carter later turned over the truck and camper to other drivers, who were in turn followed and ultimately arrested, and the vehicles lawfully seized. Both vehicles were found to contain marijuana.
After receiving this information, several of the agents converged on the South Boston warehouse and forced entry. They found the warehouse unoccupied, but observed in plain view numerous burlap-wrapped bales that were later found to contain marijuana. They left without disturbing the bales, kept the warehouse under surveillance, and did not reenter it until they had a search warrant. In applying for the warrant, the agents did not mention the prior entry, and did not rely on any observations made during that entry. When the warrant was issued—at 10:40 p.m., approximately eight hours after the initial entry—the agents immediately reentered the warehouse and seized 270 bales of marijuana and notebooks listing customers for whom the bales were destined.
Before trial, petitioners moved to suppress the evidence found in the warehouse. The District Court denied the motion, rejecting petitioners’ arguments that the warrant was invalid because the agents did not inform the Magistrate about their prior warrantless entry, and that the warrant was tainted by that entry. The First Circuit affirmed, assuming for purposes of its decision that the first entry into the warehouse was unlawful. [This Court granted certiorari.]
II
The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search and of testimony concerning knowledge acquired during an unlawful search. Beyond that, the exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes “so attenuated as to dissipate the taint.”
Almost simultaneously with our development of the exclusionary rule, in the first quarter of this century, we also announced what has come to be known as the “independent source” doctrine. That doctrine, which has been applied to evidence acquired not only through Fourth Amendment violations but also through Fifth and Sixth Amendment violations, has recently been described as follows:
“[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. … When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.”
The dispute here is over the scope of this doctrine. Petitioners contend that it applies only to evidence obtained for the first time during an independent lawful search. The Government argues that it applies also to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality. We think the Government’s view has better support in both precedent and policy.
Our cases have used the concept of “independent source” in a more general and a more specific sense. The more general sense identifies all evidence acquired in a fashion untainted by the illegal evidence-gathering activity. Thus, where an unlawful entry has given investigators knowledge of facts x and y, but fact z has been learned by other means, fact z can be said to be admissible because derived from an “independent source.”
The original use of the term, however, and its more important use for purposes of these cases, was more specific. It was originally applied in the exclusionary rule context, by Justice Holmes, with reference to that particular category of evidence acquired by an untainted search which is identical to the evidence unlawfully acquired—that is, in the example just given, to knowledge of facts x and y derived from an independent source:
“The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others.”
Petitioners’ asserted policy basis for excluding evidence which is initially discovered during an illegal search, but is subsequently acquired through an independent and lawful source, is that a contrary rule will remove all deterrence to, and indeed positively encourage, unlawful police searches. As petitioners see the incentives, law enforcement officers will routinely enter without a warrant to make sure that what they expect to be on the premises is in fact there. If it is not, they will have spared themselves the time and trouble of getting a warrant; if it is, they can get the warrant and use the evidence despite the unlawful entry. We see the incentives differently. An officer with probable cause sufficient to obtain a search warrant would be foolish to enter the premises first in an unlawful manner. By doing so, he would risk suppression of all evidence on the premises, both seen and unseen, since his action would add to the normal burden of convincing a magistrate that there is probable cause the much more onerous burden of convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers’ decision to seek a warrant or the magistrate’s decision to grant it. Nor would the officer without sufficient probable cause to obtain a search warrant have any added incentive to conduct an unlawful entry, since whatever he finds cannot be used to establish probable cause before a magistrate.
It is possible to read petitioners’ briefs as asserting the more narrow position that the “independent source” doctrine does apply to independent acquisition of evidence previously derived indirectly from the unlawful search, but does not apply to what they call “primary evidence,” that is, evidence acquired during the course of the search itself. In addition to finding no support in our precedent, this strange distinction would produce results bearing no relation to the policies of the exclusionary rule. It would mean, for example, that the government’s knowledge of the existence and condition of a dead body, knowledge lawfully acquired through independent sources, would have to be excluded if government agents had previously observed the body during an unlawful search of the defendant’s apartment; but not if they had observed a notation that the body was buried in a certain location, producing consequential discovery of the corpse.
III
To apply what we have said to the present cases: Knowledge that the marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry. But it was also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry there is no reason why the independent source doctrine should not apply. Invoking the exclusionary rule would put the police (and society) not in the same position they would have occupied if no violation occurred, but in a worse one.
The ultimate question, therefore, is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents’ decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.
The District Court found that the agents did not reveal their warrantless entry to the Magistrate, and that they did not include in their application for a warrant any recitation of their observations in the warehouse. It did not, however, explicitly find that the agents would have sought a warrant if they had not earlier entered the warehouse. The Government concedes this in its brief. To be sure, the District Court did determine that the purpose of the warrantless entry was in part “to guard against the destruction of possibly critical evidence,” and one could perhaps infer from this that the agents who made the entry already planned to obtain that “critical evidence” through a warrant-authorized search. That inference is not, however, clear enough to justify the conclusion that the District Court’s findings amounted to a determination of independent source.
Accordingly, we vacate the judgment and remand these cases to the Court of Appeals with instructions that it remand to the District Court for determination whether the warrant-authorized search of the warehouse was an independent source of the challenged evidence in the sense we have described.
Justice MARSHALL, with whom Justice STEVENS and Justice O’CONNOR join, dissenting.
[The dissent found it implausible “that the subsequent search [of the warehouse] was, in fact, independent of the illegal search” and argued that the majority “makes the application of the independent source exception turn entirely on an evaluation of the officers’ intent.” The dissent continued, “It normally will be difficult for the trial court to verify, or the defendant to rebut, an assertion by officers that they always intended to obtain a warrant, regardless of the results of the illegal search.” “[W]hen the very law enforcement officers who participate in an illegal search immediately thereafter obtain a warrant to search the same premises, I believe the evidence discovered during the initial illegal entry must be suppressed.”]
Notes, Comments, and Questions
In Nix v. Williams, 467 U.S. 431 (1984), the Court considered once again the conviction of Robert Williams for the murder of 10-year-old Pamela Powers, who disappeared from a YMCA building in Des Moines, Iowa on Christmas Eve in 1968. The case returned to the Court because after the decision in Brewer v. Williams (Chapter 29), Iowa prosecutors retried Williams. In the second trial, prosecutors did not offer evidence of the statements Williams made during his car ride, the ones elicited by the “Christian Burial Speech.” They did, however, offer physical evidence found as a result of Williams’s statements, including the body of Powers.
Building on the independent source exception described in Murray, the Nix Court created what has become known as the “inevitable discovery” exception to the exclusionary rule. When considering whether to adopt the new exception—which had already been approved by several lower courts—the Supreme Court first reviewed the justification for the exclusionary rule:
“The core rationale consistently advanced by this Court for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections. This Court has accepted the argument that the way to ensure such protections is to exclude evidence seized as a result of such violations notwithstanding the high social cost of letting persons obviously guilty go unpunished for their crimes. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired.”
The Court then revisited the grounds supporting the independent source doctrine and applied them to the slightly different situation presented in Nix.
“The independent source doctrine teaches us that the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation. There is a functional similarity between these two doctrines in that exclusion of evidence that would inevitably have been discovered would also put the government in a worse position, because the police would have obtained that evidence if no misconduct had taken place. Thus, while the independent source exception would not justify admission of evidence in this case, its rationale is wholly consistent with and justifies our adoption of the ultimate or inevitable discovery exception to the exclusionary rule.”
After Powers disappeared from the YMCA, police found some of her clothing near a rest stop in Grinell, Iowa. Next, police “initiated a large-scale search. Two hundred volunteers divided into teams began the search 21 miles east of Grinnell, covering an area several miles to the north and south of Interstate 80. They moved westward from Poweshiek County, in which Grinnell was located, into Jasper County. Searchers were instructed to check all roads, abandoned farm buildings, ditches, culverts, and any other place in which the body of a small child could be hidden.” Before the volunteers found the body, Williams led police to the hiding spot.
The Court applied the new inevitable discovery rule as follows:
“On this record it is clear that the search parties were approaching the actual location of the body, and we are satisfied, along with three courts earlier, that the volunteer search teams would have resumed the search had Williams not earlier led the police to the body and the body inevitably would have been found.”
In dissent, Justices Brennan and Marshall did not object to the new doctrine in principle. They argued that for the inevitable discovery exception to apply, the prosecution should be required to prove by “clear and convincing evidence” that the requirements had been met. The majority held that “preponderance of the evidence” was sufficient.
Our next case, Brown v. Illinois, applies what is known as the “attenuation doctrine.” The concept is somewhat like that of proximate cause in tort law. Students who have forgotten that doctrine may wish to reread Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928).
In Brown, the Court relied heavily on Wong Sun v. United States, 371 U.S. 471 (1963), which explored the attenuation doctrine in detail. Students who find Brown confusing may wish to read Wong Sun, particularly the Court’s recitation of the facts. See 371 U.S. at 473-77.
To summarize briefly, Wong Sun involved police interrogation of four individuals: Hom Way; James Wah Toy (“Toy”) (who may or may not have been “Blackie Toy,” a person sought by police); Johny Yee (“Yee”); and Wong Sun (also known as “Sea Dog”). Hom Way was the initial suspect. He was caught with drugs and implicated “Blackie Toy.” Hom Way was not a party to the Wong Sun case and did not testify. Toy was the victim of an illegal search and illegal arrest. He made a statement to police upon arrest that implicated Johny Yee. After his arraignment and release, Toy made a subsequent statement at the police station. Police found heroin at Yee’s home, and he implicated Wong Sun. Wong Sun was the victim of an illegal arrest and made a subsequent statement at the police station, after his arraignment and release.
The Court addressed the potential exclusion of (1) Toy’s statement at home; (2) the drugs found at Yee’s house; (3) Toy’s statement at the police station; and (4) Wong Sun’s statement at the police station. With respect to Toy’s trial, it excluded (or avoided addressing the admissibility of) all the evidence. With respect to Wong Sun’s trial, however, the drugs found at Yee’s house were admissible; Wong Sun had no standing to object to the search of Yee’s home or the seizure of Yee’s drugs. The Court then considered Wong Sun’s statement at the police station. The Court held that the statement was admissible because of attenuation.
Supreme Court of the United States
Richard Brown v. Illinois
Decided June 26, 1975 – 422 U.S. 590
Mr. Justice BLACKMUN delivered the opinion of the Court.
This case lies at the crossroads of the Fourth and the Fifth Amendments. Petitioner was arrested without probable cause and without a warrant. He was given, in full, the warnings prescribed by Miranda v. Arizona. Thereafter, while in custody, he made two inculpatory statements. The issue is whether evidence of those statements was properly admitted, or should have been excluded, in petitioner’s subsequent trial for murder in state court. Expressed another way, the issue is whether the statements were to be excluded as the fruit of the illegal arrest, or were admissible because the giving of the Miranda warnings sufficiently attenuated the taint of the arrest.
I
As petitioner Richard Brown was climbing the last of the stairs leading to the rear entrance of his Chicago apartment in the early evening of May 13, 1968, he happened to glance at the window near the door. He saw, pointed at him through the window, a revolver held by a stranger who was inside the apartment. The man said: “Don’t move, you are under arrest.” Another man, also with a gun, came up behind Brown and repeated the statement that he was under arrest. It was about 7:45 p.m. The two men turned out to be Detectives William Nolan and William Lenz of the Chicago police force. It is not clear from the record exactly when they advised Brown of their identity, but it is not disputed that they broke into his apartment, searched it, and then arrested Brown, all without probable cause and without any warrant, when he arrived. They later testified that they made the arrest for the purpose of questioning Brown as part of their investigation of the murder of a man named Roger Corpus.
Corpus was murdered one week earlier, on May 6, with a .38-caliber revolver in his Chicago West Side second-floor apartment. Shortly thereafter, Detective Lenz obtained petitioners’ name, among others, from Corpus’ brother. Petitioner and the others were identified as acquaintances of the victim, not as suspects.
[The Court described how police initially entered Brown’s home and arrested him.]
As both officers held him at gunpoint, the three entered the apartment. Brown was ordered to stand against the wall and was searched. No weapon was found. He was asked his name. When he denied being Richard Brown, Detective Lenz showed him the photograph, informed him that he was under arrest for the murder of Roger Corpus, handcuffed him, and escorted him to the squad car.
The two detectives took petitioner to the Maxwell Street police station. During the 20-minute drive Nolan again asked Brown, who then was sitting with him in the back seat of the car, whether his name was Richard Brown and whether he owned a 1966 Oldsmobile. Brown alternately evaded these questions or answered them falsely. Upon arrival at the station house Brown was placed in the [] interrogation room. The room was bare, except for a table and four chairs. He was left alone, apparently without handcuffs, for some minutes while the officers obtained the file on the Corpus homicide. They returned with the file, sat down at the table, one across from Brown and the other to his left, and spread the file on the table in front of him.
The officers warned Brown of his rights under Miranda. They then informed him that they knew of an incident that had occurred in a poolroom on May 5, when Brown, angry at having been cheated at dice, fired a shot from a revolver into the ceiling. Brown answered: “Oh, you know about that.” Lenz informed him that a bullet had been obtained from the ceiling of the poolroom and had been taken to the crime laboratory to be compared with bullets taken from Corpus’ body. Brown responded: “Oh, you know that, too.” At this point—it was about 8:45 p.m.—Lenz asked Brown whether he wanted to talk about the Corpus homicide. Petitioner answered that he did. For the next 20 to 25 minutes Brown answered questions put to him by Nolan, as Lenz typed.
This questioning produced a two-page statement in which Brown acknowledged that he and a man named Jimmy Claggett visited Corpus on the evening of May 5; that the three for some time sat drinking and smoking marihuana; that Claggett ordered him at gunpoint to bind Corpus’ hands and feet with cord from the headphone of a stereo set; and that Claggett, using a .38-caliber revolver sold to him by Brown, shot Corpus three times through a pillow. The statement was signed by Brown.
About 9:30 p.m. the two detectives and Brown left the station house to look for Claggett in an area of Chicago Brown knew him to frequent. They made a tour of that area but did not locate their quarry. They then went to police headquarters where they endeavored, without success, to obtain a photograph of Claggett. They resumed their search—it was now about 11 p.m.—and they finally observed Claggett crossing at an intersection. Lenz and Nolan arrested him. All four, the two detectives and the two arrested men, returned to the Maxwell Street station about 12:15 a.m.
Brown was again placed in the interrogation room. He was given coffee and was left alone, for the most part, until 2 a.m. when Assistant State’s Attorney Crilly arrived.
Crilly, too, informed Brown of his Miranda rights. After a half hour’s conversation, a court reporter appeared. Once again the Miranda warnings were given: “I read him the card.” Crilly told him that he “was sure he would be charged with murder.” Brown gave a second statement, providing a factual account of the murder substantially in accord with his first statement, but containing factual inaccuracies with respect to his personal background. When the statement was completed, at about 3 a.m., Brown refused to sign it. An hour later he made a phone call to his mother. At 9:30 that morning, about 14 hours after his arrest, he was taken before a magistrate.
On June 20 Brown and Claggett were jointly indicted by a Cook County grand jury for Corpus’ murder. Prior to trial, petitioner moved to suppress the two statements he had made. He alleged that his arrest and detention had been illegal and that the statements were taken from him in violation of his constitutional rights. After a hearing, the motion was denied.
The case proceeded to trial. The State introduced evidence of both statements. Detective Nolan testified as to the contents of the first but the writing itself was not placed in evidence. The second statement was introduced and was read to the jury in full.
The jury found petitioner guilty of murder. He was sentenced to imprisonment for not less than 15 years nor more than 30 years.
On appeal, the Supreme Court of Illinois affirmed the judgment of conviction. Because of our concern about the implication of our holding in Wong Sun v. United States, 371 U.S. 471 (1963), to the facts of Brown’s case, we granted certiorari.
II
In Wong Sun, the Court pronounced the principles to be applied where the issue is whether statements and other evidence obtained after an illegal arrest or search should be excluded. In that case, federal agents elicited an oral statement from defendant Toy after forcing entry at 6 a.m. into his laundry, at the back of which he had his living quarters. The agents had followed Toy down the hall to the bedroom and there had placed him under arrest. The Court of Appeals found that there was no probable cause for the arrest. This Court concluded that that finding was “amply justified by the facts clearly shown on this record.” Toy’s statement, which bore upon his participation in the sale of narcotics, led the agents to question another person, Johnny Yee, who actually possessed narcotics. Yee stated that heroin had been brought to him earlier by Toy and another Chinese known to him only as “Sea Dog.” Under questioning, Toy said that “Sea Dog” was Wong Sun. Toy led agents to a multifamily dwelling where, he said, Wong Sun lived. Gaining admittance to the building through a bell and buzzer, the agents climbed the stairs and entered the apartment. One went into the back room and brought Wong Sun out in handcuffs. After arraignment, Wong Sun was released on his own recognizance. Several days later, he returned voluntarily to give an unsigned confession.
This Court ruled that Toy’s declarations and the contraband taken from Yee were the fruits of the agents’ illegal action and should not have been admitted as evidence against Toy. It held that the statement did not result from “an intervening independent act of a free will,” and that it was not “sufficiently an act of free will to purge the primary taint of the unlawful invasion.” With respect to Wong Sun’s confession, however, the Court held that in the light of his lawful arraignment and release on his own recognizance, and of his return voluntarily several days later to make the statement, the connection between his unlawful arrest and the statement “had ‘become so attenuated as to dissipate the taint.’” The Court said:
“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”
The exclusionary rule thus was applied in Wong Sun primarily to protect Fourth Amendment rights. Protection of the Fifth Amendment right against self-incrimination was not the Court’s paramount concern there. To the extent that the question whether Toy’s statement was voluntary was considered, it was only to judge whether it “was sufficiently an act of free will to purge the primary taint of the unlawful invasion.”
The Court in Wong Sun, as is customary, emphasized that application of the exclusionary rule on Toy’s behalf protected Fourth Amendment guarantees in two respects: “in terms of deterring lawless conduct by federal officers,” and by “closing the doors of the federal courts to any use of evidence unconstitutionally obtained.” These considerations of deterrence and of judicial integrity, by now, have become rather commonplace in the Court’s cases. “The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” But “[d]espite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.”
III
The Illinois courts refrained from resolving the question, as apt here as it was in Wong Sun, whether Brown’s statements were obtained by exploitation of the illegality of his arrest. They assumed that the Miranda warnings, by themselves, assured that the statements (verbal acts, as contrasted with physical evidence) were of sufficient free will as to purge the primary taint of the unlawful arrest. Wong Sun, of course, preceded Miranda.
This Court has described the Miranda warnings as a “prophylactic rule” and as a “procedural safeguard” employed to protect Fifth Amendment rights against “the compulsion inherent in custodial surroundings.” The function of the warnings relates to the Fifth Amendment’s guarantee against coerced self-incrimination, and the exclusion of a statement made in the absence of the warnings, it is said, serves to deter the taking of an incriminating statement without first informing the individual of his Fifth Amendment rights.
Although, almost 90 years ago, the Court observed that the Fifth Amendment is in “intimate relation” with the Fourth, the Miranda warnings thus far have not been regarded as a means either of remedying or deterring violations of Fourth Amendment rights. Frequently, as here, rights under the two Amendments may appear to coalesce since “the ‘unreasonable searches and seizures’ condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment.” The exclusionary rule, however, when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth. It is directed at all unlawful searches and seizures, and not merely those that happen to produce incriminating material or testimony as fruits. In short, exclusion of a confession made without Miranda warnings might be regarded as necessary to effectuate the Fifth Amendment, but it would not be sufficient fully to protect the Fourth. Miranda warnings, and the exclusion of a confession made without them, do not alone sufficiently deter a Fourth Amendment violation.
Thus, even if the statements in this case were found to be voluntary under the Fifth Amendment, the Fourth Amendment issue remains. In order for the causal chain between the illegal arrest and the statements made subsequent thereto to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be “sufficiently an act of free will to purge the primary taint.” Wong Sun thus mandates consideration of a statement’s admissibility in light of the distinct policies and interests of the Fourth Amendment.
If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. Arrests made without warrant or without probable cause, for questioning or “investigation,” would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings. Any incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a “cure-all,” and the constitutional guarantee against unlawful searches and seizures could be said to be reduced to “a form of words.”
It is entirely possible, of course, as the State here argues, that persons arrested illegally frequently may decide to confess, as an act of free will unaffected by the initial illegality. But the Miranda warnings, alone and per se, cannot always make the act sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession. They cannot assure in every case that the Fourth Amendment violation has not been unduly exploited.
While we therefore reject the per se rule which the Illinois courts appear to have accepted, we also decline to adopt any alternative per se or “but for” rule. The petitioner himself professes not to demand so much. The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct are all relevant. The voluntariness of the statement is a threshold requirement. And the burden of showing admissibility rests, of course, on the prosecution.
IV
Although the Illinois courts failed to undertake the inquiry mandated by Wong Sun to evaluate the circumstances of this case in the light of the policy served by the exclusionary rule, the trial resulted in a record of amply sufficient detail and depth from which the determination may be made. We therefore decline the suggestion of the United States to remand the case for further factual findings. We conclude that the State failed to sustain the burden of showing that the evidence in question was admissible under Wong Sun.
Brown’s first statement was separated from his illegal arrest by less than two hours, and there was no intervening event of significance whatsoever. In its essentials, his situation is remarkably like that of James Wah Toy in Wong Sun. We could hold Brown’s first statement admissible only if we overrule Wong Sun. We decline to do so. And the second statement was clearly the result and the fruit of the first.
The illegality here, moreover, had a quality of purposefulness. The impropriety of the arrest was obvious; awareness of that fact was virtually conceded by the two detectives when they repeatedly acknowledged, in their testimony, that the purpose of their action was “for investigation” or for “questioning.” The arrest, both in design and in execution, was investigatory. The detectives embarked upon this expedition for evidence in the hope that something might turn up. The manner in which Brown’s arrest was affected gives the appearance of having been calculated to cause surprise, fright, and confusion.
We emphasize that our holding is a limited one. We decide only that the Illinois courts were in error in assuming that the Miranda warnings, by themselves, under Wong Sun always purge the taint of an illegal arrest.
The judgment of the Supreme Court of Illinois is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
* * *
In our next case, Utah v. Strieff, Justices in both the majority and in dissent both argued that Brown v. Illinois supported their preferred result.
Supreme Court of the United States
Utah v. Edward Joseph Strieff
Decided June 20, 2016 – 136 S. Ct. 2056
Justice THOMAS delivered the opinion of the Court.
To enforce the Fourth Amendment’s prohibition against “unreasonable searches and seizures,” this Court has at times required courts to exclude evidence obtained by unconstitutional police conduct. But the Court has also held that, even when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits. In some cases, for example, the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression. The question in this case is whether this attenuation doctrine applies when an officer makes an unconstitutional investigatory stop; learns during that stop that the suspect is subject to a valid arrest warrant; and proceeds to arrest the suspect and seize incriminating evidence during a search incident to that arrest. We hold that the evidence the officer seized as part of the search incident to arrest is admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.
I
In December 2006, someone called the South Salt Lake City police’s drug-tip line to report “narcotics activity” at a particular residence. Narcotics detective Douglas Fackrell investigated the tip. Over the course of about a week, Officer Fackrell conducted intermittent surveillance of the home. He observed visitors who left a few minutes after arriving at the house. These visits were sufficiently frequent to raise his suspicion that the occupants were dealing drugs.
One of those visitors was respondent Edward Strieff. Officer Fackrell observed Strieff exit the house and walk toward a nearby convenience store. In the store’s parking lot, Officer Fackrell detained Strieff, identified himself, and asked Strieff what he was doing at the residence.
As part of the stop, Officer Fackrell requested Strieff’s identification, and Strieff produced his Utah identification card. Officer Fackrell relayed Strieff’s information to a police dispatcher, who reported that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell then arrested Strieff pursuant to that warrant. When Officer Fackrell searched Strieff incident to the arrest, he discovered a baggie of methamphetamine and drug paraphernalia.
The State charged Strieff with unlawful possession of methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that the evidence was inadmissible because it was derived from an unlawful investigatory stop. [T]he prosecutor conceded that Officer Fackrell lacked reasonable suspicion for the stop but argued that the evidence should not be suppressed because the existence of a valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the contraband.
The trial court agreed with the State and admitted the evidence. The court found that the short time between the illegal stop and the search weighed in favor of suppressing the evidence, but that two countervailing considerations made it admissible. First, the court considered the presence of a valid arrest warrant to be an “‘extraordinary intervening circumstance.’” Second, the court stressed the absence of flagrant misconduct by Officer Fackrell, who was conducting a legitimate investigation of a suspected drug house.
Strieff conditionally pleaded guilty to reduced charges of attempted possession of a controlled substance and possession of drug paraphernalia, but reserved his right to appeal the trial court’s denial of the suppression motion. The Utah Court of Appeals affirmed. The Utah Supreme Court reversed. We granted certiorari to resolve disagreement about how the attenuation doctrine applies where an unconstitutional detention leads to the discovery of a valid arrest warrant.
A
We have [] recognized several exceptions to the [exclusionary] rule. Three of these exceptions involve the causal relationship between the unconstitutional act and the discovery of evidence. First, the independent source doctrine allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source. Second, the inevitable discovery doctrine allows for the admission of evidence that would have been discovered even without the unconstitutional source. Third, and at issue here, is the attenuation doctrine: Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.”
B
Turning to the application of the attenuation doctrine to this case, we first address a threshold question: whether this doctrine applies at all [] where the intervening circumstance that the State relies on is the discovery of a valid, pre-existing, and untainted arrest warrant.
It remains for us to address whether the discovery of a valid arrest warrant was a sufficient intervening event to break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff’s person. The three factors articulated in Brown v. Illinois guide our analysis. First, we look to the “temporal proximity” between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. Second, we consider “the presence of intervening circumstances.” Third, and “particularly” significant, we examine “the purpose and flagrancy of the official misconduct.” In evaluating these factors, we assume without deciding (because the State conceded the point) that Officer Fackrell lacked reasonable suspicion to initially stop Strieff. And, because we ultimately conclude that the warrant breaks the causal chain, we also have no need to decide whether the warrant’s existence alone would make the initial stop constitutional even if Officer Fackrell was unaware of its existence.
The first factor, temporal proximity between the initially unlawful stop and the search, favors suppressing the evidence. Our precedents have declined to find that this factor favors attenuation unless “substantial time” elapses between an unlawful act and when the evidence is obtained. Here, however, Officer Fackrell discovered drug contraband on Strieff’s person only minutes after the illegal stop. [S]uch a short time interval counsels in favor of suppression.
In contrast, the second factor, the presence of intervening circumstances, strongly favors the State. [T]he warrant was valid, it predated Officer Fackrell’s investigation, and it was entirely unconnected with the stop. And once Officer Fackrell discovered the warrant, he had an obligation to arrest Strieff. “A warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions.” Officer Fackrell’s arrest of Strieff thus was a ministerial act that was independently compelled by the pre-existing warrant. And once Officer Fackrell was authorized to arrest Strieff, it was undisputedly lawful to search Strieff as an incident of his arrest to protect Officer Fackrell’s safety.
Finally, the third factor, “the purpose and flagrancy of the official misconduct” also strongly favors the State. The exclusionary rule exists to deter police misconduct. The third factor of the attenuation doctrine reflects that rationale by favoring exclusion only when the police misconduct is most in need of deterrence—that is, when it is purposeful or flagrant.
Officer Fackrell was at most negligent. In stopping Strieff, Officer Fackrell made two good-faith mistakes. First, he had not observed what time Strieff entered the suspected drug house, so he did not know how long Strieff had been there. Officer Fackrell thus lacked a sufficient basis to conclude that Strieff was a short-term visitor who may have been consummating a drug transaction. Second, because he lacked confirmation that Strieff was a short-term visitor, Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so. Officer Fackrell’s stated purpose was to “find out what was going on [in] the house.” Nothing prevented him from approaching Strieff simply to ask. But these errors in judgment hardly rise to a purposeful or flagrant violation of Strieff’s Fourth Amendment rights.
While Officer Fackrell’s decision to initiate the stop was mistaken, his conduct thereafter was lawful. The officer’s decision to run the warrant check was a “negligibly burdensome precautio[n]” for officer safety. And Officer Fackrell’s actual search of Strieff was a lawful search incident to arrest.
Moreover, there is no indication that this unlawful stop was part of any systemic or recurrent police misconduct. To the contrary, all the evidence suggests that the stop was an isolated instance of negligence that occurred in connection with a bona fide investigation of a suspected drug house. Officer Fackrell saw Strieff leave a suspected drug house. And his suspicion about the house was based on an anonymous tip and his personal observations.
Applying these factors, we hold that the evidence discovered on Strieff’s person was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. Although the illegal stop was close in time to Strieff’s arrest, that consideration is outweighed by two factors supporting the State. The outstanding arrest warrant for Strieff’s arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.
We hold that the evidence Officer Fackrell seized as part of his search incident to arrest is admissible because his discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to arrest. The judgment of the Utah Supreme Court, accordingly, is reversed.
Justice SOTOMAYOR, with whom Justice GINSBURG joins as to Parts I, II, and III, dissenting.
The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.
II
It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian, to forgive the officer. After all, his instincts, although unconstitutional, were correct. But a basic principle lies at the heart of the Fourth Amendment: Two wrongs don’t make a right. When “lawless police conduct” uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence. For example, if an officer breaks into a home and finds a forged check lying around, that check may not be used to prosecute the homeowner for bank fraud. We would describe the check as “‘fruit of the poisonous tree.’” Fruit that must be cast aside includes not only evidence directly found by an illegal search but also evidence “come at by exploitation of that illegality.”
This “exclusionary rule” removes an incentive for officers to search us without proper justification. It also keeps courts from being “made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.” When courts admit only lawfully obtained evidence, they encourage “those who formulate law enforcement polices, and the officers who implement them, to incorporate Fourth Amendment ideals into their value system.” But when courts admit illegally obtained evidence as well, they reward “manifest neglect if not an open defiance of the prohibitions of the Constitution.”
[] Wong Sun explains why Strieff’s drugs must be excluded. We reasoned that a Fourth Amendment violation may not color every investigation that follows but it certainly stains the actions of officers who exploit the infraction. We distinguished evidence obtained by innocuous means from evidence obtained by exploiting misconduct after considering a variety of factors: whether a long time passed, whether there were “intervening circumstances,” and whether the purpose or flagrancy of the misconduct was “calculated” to procure the evidence. Brown.
These factors confirm that the officer in this case discovered Strieff’s drugs by exploiting his own illegal conduct. The officer did not ask Strieff to volunteer his name only to find out, days later, that Strieff had a warrant against him. The officer illegally stopped Strieff and immediately ran a warrant check. The officer’s discovery of a warrant was not some intervening surprise that he could not have anticipated. Utah lists over 180,000 misdemeanor warrants in its database, and at the time of the arrest, Salt Lake County had a “backlog of outstanding warrants” so large that it faced the “potential for civil liability.” The officer’s violation was also calculated to procure evidence. His sole reason for stopping Strieff, he acknowledged, was investigative—he wanted to discover whether drug activity was going on in the house Strieff had just exited.
The warrant check, in other words, was not an “intervening circumstance” separating the stop from the search for drugs. It was part and parcel of the officer’s illegal “expedition for evidence in the hope that something might turn up.” Under our precedents, because the officer found Strieff’s drugs by exploiting his own constitutional violation, the drugs should be excluded.
III
The Court sees things differently. To the Court, the fact that a warrant gives an officer cause to arrest a person severs the connection between illegal policing and the resulting discovery of evidence. This is a remarkable proposition: The mere existence of a warrant not only gives an officer legal cause to arrest and search a person, it also forgives an officer who, with no knowledge of the warrant at all, unlawfully stops that person on a whim or hunch.
But the Fourth Amendment does not tolerate an officer’s unreasonable searches and seizures just because he did not know any better. Even officers prone to negligence can learn from courts that exclude illegally obtained evidence. Indeed, they are perhaps the most in need of the education, whether by the judge’s opinion, the prosecutor’s future guidance, or an updated manual on criminal procedure. If the officers are in doubt about what the law requires, exclusion gives them an “incentive to err on the side of constitutional behavior.”
Most striking about the Court’s opinion is its insistence that the event here was “isolated,” with “no indication that this unlawful stop was part of any systemic or recurrent police misconduct.” Respectfully, nothing about this case is isolated.
Outstanding warrants are surprisingly common. When a person with a traffic ticket misses a fine payment or court appearance, a court will issue a warrant. The States and Federal Government maintain databases with over 7.8 million outstanding warrants, the vast majority of which appear to be for minor offenses. Even these sources may not track the “staggering” numbers of warrants, “‘drawers and drawers’” full, that many cities issue for traffic violations and ordinance infractions. The county in this case has had a “backlog” of such warrants. The Department of Justice recently reported that in the town of Ferguson, Missouri, with a population of 21,000, 16,000 people had outstanding warrants against them.
Justice Department investigations across the country have illustrated how these astounding numbers of warrants can be used by police to stop people without cause. In a single year in New Orleans, officers “made nearly 60,000 arrests, of which about 20,000 were of people with outstanding traffic or misdemeanor warrants from neighboring parishes for such infractions as unpaid tickets.” In the St. Louis metropolitan area, officers “routinely” stop people—on the street, at bus stops, or even in court—for no reason other than “an officer’s desire to check whether the subject had a municipal arrest warrant pending.” In Newark, New Jersey, officers stopped 52,235 pedestrians within a 4-year period and ran warrant checks on 39,308 of them. The Justice Department analyzed these warrant-checked stops and reported that “approximately 93% of the stops would have been considered unsupported by articulated reasonable suspicion.”
I do not doubt that most officers act in “good faith” and do not set out to break the law. That does not mean these stops are “isolated instance[s] of negligence,” however. Many are the product of institutionalized training procedures. The majority does not suggest what makes this case “isolated” from these and countless other examples. Nor does it offer guidance for how a defendant can prove that his arrest was the result of “widespread” misconduct. Surely it should not take a federal investigation of Salt Lake County before the Court would protect someone in Strieff’s position.
IV
Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.
Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. That justification must provide specific reasons why the officer suspected you were breaking the law but it may factor in your ethnicity, where you live, what you were wearing, and how you behaved. The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous.
The indignity of the stop is not limited to an officer telling you that you look like a criminal. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’”
The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck … with [your] 3-year-old son and 5-year-old daughter … without [your] seatbelt fastened.” At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future.
This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. But it is no secret that people of color are disproportionate victims of this type of scrutiny. For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.
By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.
We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.
I dissent.
* * *
In our next chapter, we will review how the Court has applied the exclusionary rule to evidence obtained as a result of Miranda Rule violations. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/04%3A_The_Exclusionary_Rule/4.03%3A_Chapter_33_-_Exclusionary_Rule-_Standing_and_Exceptions.txt |
THE EXCLUSIONARY RULE
Exclusionary Rule: Application to the Miranda Rule
The Miranda Rule has a somewhat unusual status in criminal procedure law because although the Court created the rule to enforce the Self-Incrimination Clause of the Fifth Amendment, the Justices have not announced consistent views on whether violations of Miranda are—in and of themselves—violations of the Constitution. In Miranda, the Court held that statements obtained during custodial interrogation in violation of the Miranda Rule would be presumed involuntary. But the Court has not always treated such statements in the same way as confessions that are truly involuntary. (For example, involuntary statements may not be used for impeachment.) In this chapter, we review how the Court has applied the exclusionary rule to the Miranda doctrine.
Our first case concerns the status of testimony given by a witness whom police discovered as a result of a Miranda violation.
Supreme Court of the United States
Michigan v. Thomas W. Tucker
Decided June 10, 1974 – 417 U.S. 433
Mr. Justice REHNQUIST delivered the opinion of the Court.
This case presents the question whether the testimony of a witness in respondent’s state court trial for rape must be excluded simply because police had learned the identity of the witness by questioning respondent at a time when he was in custody as a suspect, but had not been advised that counsel would be appointed for him if he was indigent.
I
On the morning of April 19, 1966, a 43-year-old woman in Pontiac, Michigan was found in her home by a friend and coworker, Luther White, in serious condition. At the time she was found the woman was tied, gagged, and partially disrobed, and had been both raped and severely beaten. She was unable to tell White anything about her assault at that time and still remains unable to recollect what happened.
While White was attempting to get medical help for the victim and to call for the police, he observed a dog inside the house. This apparently attracted White’s attention for he knew that the woman did not own a dog herself. Later, when talking with police officers, White observed the dog a second time, and police followed the dog to respondent’s house. Neighbors further connected the dog with respondent.
The police then arrested respondent and brought him to the police station for questioning. Prior to the actual interrogation the police asked respondent whether he knew for what crime he had been arrested, whether he wanted an attorney, and whether he understood his constitutional rights. Respondent replied that he did understand the crime for which he was arrested, that he did not want an attorney, and that he understood his rights. The police further advised him that any statements he might make could be used against him at a later date in court. The police, however, did not advise respondent that he would be furnished counsel free of charge if he could not pay for such services himself.
The police then questioned respondent about his activities on the night of the rape and assault. Respondent replied that during the general time period at issue he had first been with one Robert Henderson and then later at home, alone, asleep. The police sought to confirm this story by contacting Henderson, but Henderson’s story served to discredit rather than to bolster respondent’s account. Henderson acknowledged that respondent had been with him on the night of the crime but said that he had left at a relatively early time. Furthermore, Henderson told police that he saw respondent the following day and asked him at that time about scratches on his face—“asked him if he got hold of a wild one or something.” Respondent answered: “[S]omething like that.” Then, Henderson said, he asked respondent “who it was,” and respondent said: “[S]ome woman lived the next block over,” adding: “She is a widow woman” or words to that effect.
Prior to trial respondent’s appointed counsel made a motion to exclude Henderson’s expected testimony because respondent had revealed Henderson’s identity without having received full Miranda warnings. Although respondent’s own statements taken during interrogation were excluded, the trial judge denied the motion to exclude Henderson’s testimony. Henderson therefore testified at trial, and respondent was convicted of rape and sentenced to 20 to 40 years’ imprisonment. His conviction was affirmed by both the Michigan Court of Appeals and the Michigan Supreme Court.
Respondent then sought habeas corpus relief in Federal District Court. The court [] granted respondent’s petition for a writ of habeas corpus unless petitioner retried respondent within 90 days. The Court of Appeals for the Sixth Circuit affirmed. We granted certiorari and now reverse.
II
Although respondent’s sole complaint is that the police failed to advise him that he would be given free counsel if unable to afford counsel himself, he did not, and does not now, base his arguments for relief on a right to counsel under the Sixth and Fourteenth Amendments. Nor was the right to counsel, as such, considered to be persuasive by either federal court below.
Respondent’s argument, and the opinions of the District Court and Court of Appeals, instead rely upon the Fifth Amendment right against compulsory self-incrimination and the safeguards designed in Miranda to secure that right. In brief, the position urged upon this Court is that proper regard for the privilege against compulsory self-incrimination requires, with limited exceptions not applicable here, that all evidence derived solely from statements made without full Miranda warnings be excluded at a subsequent criminal trial. For purposes of analysis in this case we believe that the question thus presented is best examined in two separate parts. We will therefore first consider whether the police conduct complained of directly infringed upon respondent’s right against compulsory self-incrimination or whether it instead violated only the prophylactic rules developed to protect that right. We will then consider whether the evidence derived from this interrogation must be excluded.
III
[The Court determined “that the police conduct here did not deprive respondent of his privilege against compulsory self-incrimination as such, but rather failed to make available to him the full measure of procedural safeguards associated with that right since Miranda.”]
IV
Just as the law does not require that a defendant receive a perfect trial, only a fair one, it cannot realistically require that policeman investigating serious crimes make no errors whatsoever. The pressures of law enforcement and the vagaries of human nature would make such an expectation unrealistic. Before we penalize police error, therefore, we must consider whether the sanction serves a valid and useful purpose.
We have recently said, in a search-and-seizure context, that the exclusionary rule’s “prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.” “The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” In a proper case this rationale would seem applicable to the Fifth Amendment context as well.
The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.
We consider it significant to our decision in this case that the officers’ failure to advise respondent of his right to appointed counsel occurred prior to the decision in Miranda. Although we have been urged to resolve the broad question of whether evidence derived from statements taken in violation of the Miranda rules must be excluded regardless of when the interrogation took place, we instead place our holding on a narrower ground. For at the time respondent was questioned these police officers were guided, quite rightly, by the [pre-Miranda] principles, particularly focusing on the suspect’s opportunity to have retained counsel with him during the interrogation if he chose to do so. Thus, the police asked respondent if he wanted counsel, and he answered that he did not. The statements actually made by respondent to the police, as we have observed, were excluded at trial. Whatever deterrent effect on future police conduct the exclusion of those statements may have had, we do not believe it would be significantly augmented by excluding the testimony of the witness Henderson as well.
When involuntary statements or the right against compulsory self-incrimination are involved, a second justification for the exclusionary rule also has been asserted: protection of the courts from reliance on untrustworthy evidence. Cases which involve the Self-Incrimination Clause must, by definition, involve an element of coercion, since the Clause provides only that a person shall not be compelled to give evidence against himself. And cases involving statements often depict severe pressures which may override a particular suspect’s insistence on innocence.
But those situations are a far cry from that presented here. The pressures on respondent to accuse himself were hardly comparable even with the least prejudicial of those pressures which have been dealt with in our cases. More important, the respondent did not accuse himself. The evidence which the prosecution successfully sought to introduce was not a confession of guilt by respondent, or indeed even an exculpatory statement by respondent, but rather the testimony of a third party who was subjected to no custodial pressures. There is plainly no reason to believe that Henderson’s testimony is untrustworthy simply because respondent was not advised of his right to appointed counsel. Henderson was both available at trial and subject to cross-examination by respondent’s counsel, and counsel fully used this opportunity, suggesting in the course of his cross-examination that Henderson’s character was less than exemplary and that he had been offered incentives by the police to testify against respondent. Thus the reliability of his testimony was subject to the normal testing process of an adversary trial.
In summary, we do not think that any single reason supporting exclusion of this witness’ testimony, or all of them together, are very persuasive. By contrast, we find the arguments in favor of admitting the testimony quite strong. For, when balancing the interests involved, we must weigh the strong interest under any system of justice of making available to the trier of fact all concededly relevant and trustworthy evidence which either party seeks to adduce. In this particular case we also “must consider society’s interest in the effective prosecution of criminals in light of the protection our pre-Miranda standards afford criminal defendants.” These interests may be outweighed by the need to provide an effective sanction to a constitutional right, but they must in any event be valued. Here respondent’s own statement, which might have helped the prosecution show respondent’s guilty conscience at trial, had already been excised from the prosecution’s case. To extend the excision further under the circumstances of this case and exclude relevant testimony of a third-party witness would require far more persuasive arguments than those advanced by respondent.
Reversed.
Notes, Comments, and Questions
In Tucker, the Court declined to suppress evidence in part because officers acted in good faith. “Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.” This language is similar to the Court’s words in United States v. Leon, 468 U.S. 897 (1984), which concerned “objectively reasonable reliance on a subsequently invalidated search warrant.” The Court held that evidence found during execution of a search warrant issued by a neutral magistrate should not be excluded if a court later found that there was insufficient evidence to satisfy the probable cause requirement in the Warrant Clause—unless the officer had “no reasonable grounds for believing that the warrant was properly issued.” In other words, the officer would not be punished for reasonable reliance on the magistrate’s probable cause finding, even if the finding was later overturned. The “good faith exception” to exclusion of evidence under the Fourth Amendment was expanded in cases such as Herring v. United States (Chapter 32) and Davis v. United States (Chapter 32).
The Tucker Court also justified its result in part on timing; the interrogation at issue occurred before Miranda was decided, making the police behavior less blameworthy. Students should note that the holding of Tucker—that a witness identified during an interrogation conducted in violation of Miranda may testify against the defendant at trial—remains good law for interrogations conducted well after the Court decided Miranda.
Unlike Tucker, which concerned testimony by someone other than the defendant, our next case concerns statements police obtained from a defendant after a Miranda violation. The question was whether an initial Miranda violation necessarily taints, and renders inadmissible, statements obtained during a subsequent post-warning interrogation.
Supreme Court of the United States
Oregon v. Michael James Elstad
Decided March 4, 1985—470 U.S. 298
Justice O’CONNOR delivered the opinion of the Court.
This case requires us to decide whether an initial failure of law enforcement officers to administer the warnings required by Miranda v. Arizona, without more, “taints” subsequent admissions made after a suspect has been fully advised of and has waived his Miranda rights. Respondent, Michael James Elstad, was convicted of burglary by an Oregon trial court. The Oregon Court of Appeals reversed, holding that respondent’s signed confession, although voluntary, was rendered inadmissible by a prior remark made in response to questioning without benefit of Miranda warnings. We granted certiorari and we now reverse.
I
In December 1981, the home of Mr. and Mrs. Gilbert Gross, in the town of Salem, Polk County, Ore., was burglarized. Missing were art objects and furnishings valued at \$150,000. A witness to the burglary contacted the Polk County Sheriff’s office, implicating respondent Michael Elstad, an 18-year-old neighbor and friend of the Grosses’ teenage son. Thereupon, Officers Burke and McAllister went to the home of respondent Elstad, with a warrant for his arrest. Elstad’s mother answered the door. She led the officers to her son’s room where he lay on his bed, clad in shorts and listening to his stereo. The officers asked him to get dressed and to accompany them into the living room. Officer McAllister asked respondent’s mother to step into the kitchen, where he explained that they had a warrant for her son’s arrest for the burglary of a neighbor’s residence. Officer Burke remained with Elstad in the living room. He later testified:
“I sat down with Mr. Elstad and I asked him if he was aware of why Detective McAllister and myself were there to talk with him. He stated no, he had no idea why we were there. I then asked him if he knew a person by the name of Gross, and he said yes, he did, and also added that he heard that there was a robbery at the Gross house. And at that point I told Mr. Elstad that I felt he was involved in that, and he looked at me and stated, ‘Yes, I was there.’”
The officers then escorted Elstad to the back of the patrol car. As they were about to leave for the Polk County Sheriff’s office, Elstad’s father arrived home and came to the rear of the patrol car. The officers advised him that his son was a suspect in the burglary. Officer Burke testified that Mr. Elstad became quite agitated, opened the rear door of the car and admonished his son: “I told you that you were going to get into trouble. You wouldn’t listen to me. You never learn.”
Elstad was transported to the Sheriff’s headquarters and approximately one hour later, Officers Burke and McAllister joined him in McAllister’s office. McAllister then advised respondent for the first time of his Miranda rights, reading from a standard card. Respondent indicated he understood his rights, and, having these rights in mind, wished to speak with the officers. Elstad gave a full statement, explaining that he had known that the Gross family was out of town and had been paid to lead several acquaintances to the Gross residence and show them how to gain entry through a defective sliding glass door. The statement was typed, reviewed by respondent, read back to him for correction, initialed and signed by Elstad and both officers. As an afterthought, Elstad added and initialed the sentence, “After leaving the house Robby & I went back to [the] van & Robby handed me a small bag of grass.” Respondent concedes that the officers made no threats or promises either at his residence or at the Sheriff’s office.
Respondent was charged with first-degree burglary. Respondent moved at once to suppress his oral statement and signed confession. He contended that the statement he made in response to questioning at his house “let the cat out of the bag,” citing and tainted the subsequent confession as “fruit of the poisonous tree.” The judge ruled that the statement, “I was there,” had to be excluded because the defendant had not been advised of his Miranda rights. The written confession taken after Elstad’s arrival at the Sheriff’s office, however, was admitted in evidence. The court found:
“[H]is written statement was given freely, voluntarily and knowingly by the defendant after he had waived his right to remain silent and have counsel present which waiver was evidenced by the card which the defendant had signed. [It] was not tainted in any way by the previous brief statement between the defendant and the Sheriff’s Deputies that had arrested him.”
Elstad was found guilty of burglary in the first degree. He received a 5-year sentence and was ordered to pay \$18,000 in restitution.
Following his conviction, respondent appealed to the Oregon Court of Appeals. The Court of Appeals reversed respondent’s conviction. The State of Oregon petitioned the Oregon Supreme Court for review, and review was declined. This Court granted certiorari to consider the question whether the Self-Incrimination Clause of the Fifth Amendment requires the suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary but unwarned admission from the defendant.
II
The arguments advanced in favor of suppression of respondent’s written confession rely heavily on metaphor. One metaphor, familiar from the Fourth Amendment context, would require that respondent’s confession, regardless of its integrity, voluntariness, and probative value, be suppressed as the “tainted fruit of the poisonous tree” of the Miranda violation. A second metaphor questions whether a confession can be truly voluntary once the “cat is out of the bag.” Taken out of context, each of these metaphors can be misleading. They should not be used to obscure fundamental differences between the role of the Fourth Amendment exclusionary rule and the function of Miranda in guarding against the prosecutorial use of compelled statements as prohibited by the Fifth Amendment. The Oregon court assumed and respondent here contends that a failure to administer Miranda warnings necessarily breeds the same consequences as police infringement of a constitutional right, so that evidence uncovered following an unwarned statement must be suppressed as “fruit of the poisonous tree.” We believe this view misconstrues the nature of the protections afforded by Miranda warnings and therefore misreads the consequences of police failure to supply them.
A
Prior to Miranda, the admissibility of an accused’s in-custody statements was judged solely by whether they were “voluntary” within the meaning of the Due Process Clause. If a suspect’s statements had been obtained by “techniques and methods offensive to due process,” or under circumstances in which the suspect clearly had no opportunity to exercise “a free and unconstrained will,” the statements would not be admitted. The Court in Miranda required suppression of many statements that would have been admissible under traditional due process analysis by presuming that statements made while in custody and without adequate warnings were protected by the Fifth Amendment. The Fifth Amendment, of course, is not concerned with nontestimonial evidence. Nor is it concerned with moral and psychological pressures to confess emanating from sources other than official coercion. Voluntary statements “remain a proper element in law enforcement.” “Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable. … Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions.”
Respondent’s contention that his confession was tainted by the earlier failure of the police to provide Miranda warnings and must be excluded as “fruit of the poisonous tree” assumes the existence of a constitutional violation. But [] a procedural Miranda violation differs in significant respects from violations of the Fourth Amendment, which have traditionally mandated a broad application of the “fruits” doctrine. The purpose of the Fourth Amendment exclusionary rule is to deter unreasonable searches, no matter how probative their fruits. “The exclusionary rule, … when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth.” Where a Fourth Amendment violation “taints” the confession, a finding of voluntariness for the purposes of the Fifth Amendment is merely a threshold requirement in determining whether the confession may be admitted in evidence. Beyond this, the prosecution must show a sufficient break in events to undermine the inference that the confession was caused by the Fourth Amendment violation.
The Miranda exclusionary rule, however, serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a Fifth Amendment violation. The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda. Thus, in the individual case, Miranda’s preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm.
But the Miranda presumption, though irrebuttable for purposes of the prosecution’s case in chief, does not require that the statements and their fruits be discarded as inherently tainted. Despite the fact that patently voluntary statements taken in violation of Miranda must be excluded from the prosecution’s case, the presumption of coercion does not bar their use for impeachment purposes on cross-examination. Where an unwarned statement is preserved for use in situations that fall outside the sweep of the Miranda presumption, “the primary criterion of admissibility [remains] the ‘old’ due process voluntariness test.”
We believe that this reasoning applies with equal force when the alleged “fruit” of a noncoercive Miranda violation is neither a witness nor an article of evidence but the accused’s own voluntary testimony. [T]he absence of any coercion or improper tactics undercuts the twin rationales—trustworthiness and deterrence—for a broader rule. Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to the authorities. The Court has often noted: “‘[A] living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. … [T]he living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.’”
Because Miranda warnings may inhibit persons from giving information, this Court has determined that they need be administered only after the person is taken into “custody” or his freedom has otherwise been significantly restrained. Unfortunately, the task of defining “custody” is a slippery one, and “policemen investigating serious crimes [cannot realistically be expected to] make no errors whatsoever.” If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.
B
The Oregon court, however, believed that the unwarned remark compromised the voluntariness of respondent’s later confession. It was the court’s view that the prior answer and not the unwarned questioning impaired respondent’s ability to give a valid waiver and that only lapse of time and change of place could dissipate what it termed the “coercive impact” of the inadmissible statement. The Oregon court [] identified a subtle form of lingering compulsion, the psychological impact of the suspect’s conviction that he has let the cat out of the bag and, in so doing, has sealed his own fate. But endowing the psychological effects of voluntary unwarned admissions with constitutional implications would, practically speaking, disable the police from obtaining the suspect’s informed cooperation even when the official coercion proscribed by the Fifth Amendment played no part in either his warned or unwarned confessions.
This Court has never held that the psychological impact of voluntary disclosure of a guilty secret qualifies as state compulsion or compromises the voluntariness of a subsequent informed waiver. The Oregon court, by adopting this expansive view of Fifth Amendment compulsion, effectively immunizes a suspect who responds to pre-Miranda warning questions from the consequences of his subsequent informed waiver of the privilege of remaining silent. This immunity comes at a high cost to legitimate law enforcement activity, while adding little desirable protection to the individual’s interest in not being compelled to testify against himself. When neither the initial nor the subsequent admission is coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the factfinder.
There is a vast difference between the direct consequences flowing from coercion of a confession by physical violence or other deliberate means calculated to break the suspect’s will and the uncertain consequences of disclosure of a “guilty secret” freely given in response to an unwarned but noncoercive question, as in this case. Certainly, in respondent’s case, the causal connection between any psychological disadvantage created by his admission and his ultimate decision to cooperate is speculative and attenuated at best. It is difficult to tell with certainty what motivates a suspect to speak. A suspect’s confession may be traced to factors as disparate as “a prearrest event such as a visit with a minister” or an intervening event such as the exchange of words respondent had with his father. We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.
III
Though belated, the reading of respondent’s rights was undeniably complete. McAllister testified that he read the Miranda warnings aloud from a printed card and recorded Elstad’s responses. There is no question that respondent knowingly and voluntarily waived his right to remain silent before he described his participation in the burglary. It is also beyond dispute that respondent’s earlier remark was voluntary, within the meaning of the Fifth Amendment. Neither the environment nor the manner of either “interrogation” was coercive. The initial conversation took place at midday, in the living room area of respondent’s own home, with his mother in the kitchen area, a few steps away. Although in retrospect the officers testified that respondent was then in custody, at the time he made his statement he had not been informed that he was under arrest. The arresting officers’ testimony indicates that the brief stop in the living room before proceeding to the station house was not to interrogate the suspect but to notify his mother of the reason for his arrest.
The State has conceded the issue of custody and thus we must assume that Burke breached Miranda procedures in failing to administer Miranda warnings before initiating the discussion in the living room. This breach may have been the result of confusion as to whether the brief exchange qualified as “custodial interrogation” or it may simply have reflected Burke’s reluctance to initiate an alarming police procedure before McAllister had spoken with respondent’s mother. Whatever the reason for Burke’s oversight, the incident had none of the earmarks of coercion. Nor did the officers exploit the unwarned admission to pressure respondent into waiving his right to remain silent.
This Court has never embraced the theory that a defendant’s ignorance of the full consequences of his decisions vitiates their voluntariness. If the prosecution has actually violated the defendant’s Fifth Amendment rights by introducing an inadmissible confession at trial, compelling the defendant to testify in rebuttal, the rule precludes use of that testimony on retrial. “Having ‘released the spring’ by using the petitioner’s unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony.” But the Court has refused to find that a defendant who confesses, after being falsely told that his codefendant has turned State’s evidence, does so involuntarily. The Court has also rejected the argument that a defendant’s ignorance that a prior coerced confession could not be admitted in evidence compromised the voluntariness of his guilty plea. Thus we have not held that the sine qua non for a knowing and voluntary waiver of the right to remain silent is a full and complete appreciation of all of the consequences flowing from the nature and the quality of the evidence in the case.
IV
When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the State’s case in chief. The Court has carefully adhered to this principle, permitting a narrow exception only where pressing public safety concerns demanded. The Court today in no way retreats from the bright-line rule of Miranda. We do not imply that good faith excuses a failure to administer Miranda warnings; nor do we condone inherently coercive police tactics or methods offensive to due process that render the initial admission involuntary and undermine the suspect’s will to invoke his rights once they are read to him. A handful of courts have, however, applied our precedents relating to confessions obtained under coercive circumstances to situations involving wholly voluntary admissions, requiring a passage of time or break in events before a second, fully warned statement can be deemed voluntary. Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect’s initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.
The judgment of the Court of Appeals of Oregon is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
Even while purporting to reaffirm [] constitutional guarantees, the Court has engaged of late in a studied campaign to strip the Miranda decision piecemeal and to undermine the rights Miranda sought to secure. Today’s decision not only extends this effort a further step, but delivers a potentially crippling blow to Miranda and the ability of courts to safeguard the rights of persons accused of crime. For at least with respect to successive confessions, the Court today appears to strip remedies for Miranda violations of the “fruit of the poisonous tree” doctrine prohibiting the use of evidence presumptively derived from official illegality.
Two major premises undergird the Court’s decision. The Court rejects as nothing more than “speculative” the long-recognized presumption that an illegally extracted confession causes the accused to confess again out of the mistaken belief that he already has sealed his fate, and it condemns as “‘extravagant’” the requirement that the prosecution affirmatively rebut the presumption before the subsequent confession may be admitted. The Court instead adopts a new rule that, so long as the accused is given the usual Miranda warnings before further interrogation, the taint of a previous confession obtained in violation of Miranda “ordinarily” must be viewed as automatically dissipated.
The Court’s decision says much about the way the Court currently goes about implementing its agenda. In imposing its new rule, for example, the Court mischaracterizes our precedents, obfuscates the central issues, and altogether ignores the practical realities of custodial interrogation that have led nearly every lower court to reject its simplistic reasoning. Moreover, the Court adopts startling and unprecedented methods of construing constitutional guarantees. Finally the Court reaches out once again to address issues not before us. For example, although the State of Oregon has conceded that the arresting officers broke the law in this case, the Court goes out of its way to suggest that they may have been objectively justified in doing so.
Today’s decision, in short, threatens disastrous consequences far beyond the outcome in this case.
The Court today [adopts] a rule that “the psychological impact of voluntary disclosure of a guilty secret” neither “qualifies as state compulsion” nor “compromises the voluntariness” of subsequent confessions. So long as a suspect receives the usual Miranda warnings before further interrogation, the Court reasons, the fact that he “is free to exercise his own volition in deciding whether or not to make” further confessions “ordinarily” is a sufficient “cure” and serves to break any causal connection between the illegal confession and subsequent statements.
Our precedents did not develop in a vacuum. They reflect an understanding of the realities of police interrogation and the everyday experience of lower courts. Expert interrogators, far from dismissing a first admission or confession as creating merely a “speculative and attenuated” disadvantage for a suspect, understand that such revelations frequently lead directly to a full confession. Standard interrogation manuals advise that “[t]he securing of the first admission is the biggest stumbling block….” If this first admission can be obtained, “there is every reason to expect that the first admission will lead to others, and eventually to the full confession.”
Interrogators describe the point of the first admission as the “breakthrough” and the “beachhead,” which once obtained will give them enormous “tactical advantages.” Thus “[t]he securing of incriminating admissions might well be considered as the beginning of the final stages in crumbling the defenses of the suspect,” and the process of obtaining such admissions is described as “the spadework required to motivate the subject into making the full confession.”
The practical experience of state and federal courts confirms the experts’ understanding. From this experience, lower courts have concluded that a first confession obtained without proper Miranda warnings, far from creating merely some “speculative and attenuated” disadvantage for the accused, frequently enables the authorities to obtain subsequent confessions on a “silver platter.”
One police practice that courts have frequently encountered involves the withholding of Miranda warnings until the end of an interrogation session. Specifically, the police escort a suspect into a room, sit him down and, without explaining his Fifth Amendment rights or obtaining a knowing and voluntary waiver of those rights, interrogate him about his suspected criminal activity. If the police obtain a confession, it is then typed up, the police hand the suspect a pen for his signature, and—just before he signs—the police advise him of his Miranda rights and ask him to proceed. Alternatively, the police may call a stenographer in after they have obtained the confession, advise the suspect for the first time of his Miranda rights, and ask him to repeat what he has just told them. In such circumstances, the process of giving Miranda warnings and obtaining the final confession is “‘merely a formalizing, a setting down almost as a scrivener does, [of] what ha[s] already taken [place].’” In such situations, where “it was all over except for reading aloud and explaining the written waiver of the Miranda safeguards,” courts have time and again concluded that “[t]he giving of the Miranda warnings before reducing the product of the day’s work to written form could not undo what had been done or make legal what was illegal.”
For all practical purposes, the prewarning and post-warning questioning are often but stages of one overall interrogation. Whether or not the authorities explicitly confront the suspect with his earlier illegal admissions makes no significant difference, of course, because the suspect knows that the authorities know of his earlier statements and most frequently will believe that those statements already have sealed his fate.
I would have thought that the Court, instead of dismissing the “cat out of the bag” presumption out of hand, would have accounted for these practical realities. Expert interrogators and experienced lower-court judges will be startled, to say the least, to learn that the connection between multiple confessions is “speculative” and that a subsequent rendition of Miranda warnings “ordinarily” enables the accused in these circumstances to exercise his “free will” and to make “a rational and intelligent choice whether to waive or invoke his rights.”
Not content merely to ignore the practical realities of police interrogation and the likely effects of its abolition of the derivative-evidence presumption, the Court goes on to assert that nothing in the Fifth Amendment or the general judicial policy of deterring illegal police conduct “ordinarily” requires the suppression of evidence derived proximately from a confession obtained in violation of Miranda. The Court does not limit its analysis to successive confessions, but recurrently refers generally to the “fruits” of the illegal confession. Thus the potential impact of the Court’s reasoning might extend far beyond the “cat out of the bag” context to include the discovery of physical evidence and other derivative fruits of Miranda violations as well.
I dissent.
Justice STEVENS, dissenting.
The desire to achieve a just result in this particular case has produced an opinion that is somewhat opaque and internally inconsistent.
For me, the most disturbing aspect of the Court’s opinion is its somewhat opaque characterization of the police misconduct in this case. The Court appears ambivalent on the question whether there was any constitutional violation. This ambivalence is either disingenuous or completely lawless. This Court’s power to require state courts to exclude probative self-incriminatory statements rests entirely on the premise that the use of such evidence violates the Federal Constitution. The same constitutional analysis applies whether the custodial interrogation is actually coercive or irrebuttably presumed to be coercive. If the Court does not accept that premise, it must regard the holding in the Miranda case itself, as well as all of the federal jurisprudence that has evolved from that decision, as nothing more than an illegitimate exercise of raw judicial power. If the Court accepts the proposition that respondent’s self-incriminatory statement was inadmissible, it must also acknowledge that the Federal Constitution protected him from custodial police interrogation without first being advised of his right to remain silent.
The source of respondent’s constitutional protection is the Fifth Amendment’s privilege against compelled self-incrimination that is secured against state invasion by the Due Process Clause of the Fourteenth Amendment. Like many other provisions of the Bill of Rights, that provision is merely a procedural safeguard. It is, however, the specific provision that protects all citizens from the kind of custodial interrogation that was once employed by the Star Chamber, by “the Germans of the 1930’s and early 1940’s,” and by some of our own police departments only a few decades ago. Custodial interrogation that violates that provision of the Bill of Rights is a classic example of a violation of a constitutional right.
I respectfully dissent.
Notes, Comments, and Questions
The Court in Elstad rejects the “cat out of the bag” theory. It finds three factors persuasive:
1) The police behavior was not especially bad or willful.
2) The non-Mirandized confession was voluntary, not the product of compulsion.
3) There was significant attenuation between the two interrogations (not just the warnings given at the second interrogation, but also a trip from home to the police station).
Contrast these factors with the dissent’s discussion of the psychological effect of the “cat out of the bag” theory. Which do you find more persuasive? After the Court decided Elstad, police departments began conducting intentionally the sort of two-stage interrogation that occurred inadvertently in Elstad. That is, as described in Justice’s Brennan’s Elstad dissent, officers would interrogate a suspect in custody without first administering Miranda warnings. Then, after obtaining a confession, officers would recite the warnings and restart the questioning, using the information gained during the pre-warning interrogation to induce new statements officers expected could be used at trial. Because of its location, the tactic described in the next case became known as the “Missouri Two-Step.”
Supreme Court of the United States
Missouri v. Patrice Seibert
Decided June 28, 2004 – 542 U.S. 600
Justice SOUTER announced the judgment of the Court and delivered an opinion, in which Justice STEVENS, Justice GINSBURG, and Justice BREYER join.
This case tests a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Although such a statement is generally inadmissible, since taken in violation of Miranda v. Arizona, the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time. The question here is the admissibility of the repeated statement. Because this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda’s constitutional requirement, we hold that a statement repeated after a warning in such circumstances is inadmissible.
I
Respondent Patrice Seibert’s 12-year-old son Jonathan had cerebral palsy, and when he died in his sleep she feared charges of neglect because of bedsores on his body. In her presence, two of her teenage sons and two of their friends devised a plan to conceal the facts surrounding Jonathan’s death by incinerating his body in the course of burning the family’s mobile home, in which they planned to leave Donald Rector, a mentally ill teenager living with the family, to avoid any appearance that Jonathan had been unattended. Seibert’s son Darian and a friend set the fire, and Donald died.
Five days later, the police awakened Seibert at 3 a.m. at a hospital where Darian was being treated for burns. In arresting her, Officer Kevin Clinton followed instructions from Rolla, Missouri, Officer Richard Hanrahan that he refrain from giving Miranda warnings. After Seibert had been taken to the police station and left alone in an interview room for 15 to 20 minutes, Officer Hanrahan questioned her without Miranda warnings for 30 to 40 minutes, squeezing her arm and repeating “Donald was also to die in his sleep.” After Seibert finally admitted she knew Donald was meant to die in the fire, she was given a 20-minute coffee and cigarette break. Officer Hanrahan then turned on a tape recorder, gave Seibert the Miranda warnings, and obtained a signed waiver of rights from her. He resumed the questioning with “Ok, ‘trice, we’ve been talking for a little while about what happened on Wednesday the twelfth, haven’t we?” and confronted her with her prewarning statements:
Hanrahan: “Now, in discussion you told us, you told us that there was a[n] understanding about Donald.”
Seibert: “Yes.”
Hanrahan: “Did that take place earlier that morning?”
Seibert: “Yes.”
Hanrahan: “And what was the understanding about Donald?”
Seibert: “If they could get him out of the trailer, to take him out of the trailer.”
Hanrahan: “And if they couldn’t?”
Seibert: “I, I never even thought about it. I just figured they would.”
Hanrahan: “‘Trice, didn’t you tell me that he was supposed to die in his sleep?”
Seibert: “If that would happen, ‘cause he was on that new medicine, you know ….”
Hanrahan: “The Prozac? And it makes him sleepy. So he was supposed to die in his sleep?”
Seibert: “Yes.”
After being charged with first-degree murder for her role in Donald’s death, Seibert sought to exclude both her prewarning and postwarning statements. At the suppression hearing, Officer Hanrahan testified that he made a “conscious decision” to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question “until I get the answer that she’s already provided once.” He acknowledged that Seibert’s ultimate statement was “largely a repeat of information … obtained” prior to the warning.
The trial court suppressed the prewarning statement but admitted the responses given after the Miranda recitation. A jury convicted Seibert of second-degree murder. On appeal, the Missouri Court of Appeals affirmed. The Supreme Court of Missouri reversed. We granted certiorari to resolve a split in the Courts of Appeals. We now affirm.
II
[The Court recounted the import of Miranda warnings to “to reduce the risk of a coerced confession and to implement the Self-Incrimination Clause.” The Court concluded that “Miranda conditioned the admissibility at trial of any custodial confession on warning a suspect of his rights: failure to give the prescribed warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained. Conversely, giving the warnings and getting a waiver has generally produced a virtual ticket of admissibility; maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a valid waiver. To point out the obvious, this common consequence would not be common at all were it not that Miranda warnings are customarily given under circumstances allowing for a real choice between talking and remaining silent.”]
III
There are those, of course, who preferred the old way of doing things, giving no warnings and litigating the voluntariness of any statement in nearly every instance. In the aftermath of Miranda, Congress even passed a statute seeking to restore that old regime, although the Act lay dormant for years until finally invoked and challenged in Dickerson v. United States (Chapter 23). Dickerson reaffirmed Miranda and held that its constitutional character prevailed against the statute.
The technique of interrogating in successive, unwarned and warned phases raises a new challenge to Miranda. Although we have no statistics on the frequency of this practice, it is not confined to Rolla, Missouri. An officer of that police department testified that the strategy of withholding Miranda warnings until after interrogating and drawing out a confession was promoted not only by his own department, but by a national police training organization and other departments in which he had worked. Consistently with the officer’s testimony, the Police Law Institute, for example, instructs that “officers may conduct a two-stage interrogation…. At any point during the pre-Miranda interrogation, usually after arrestees have confessed, officers may then read the Miranda warnings and ask for a waiver. If the arrestees waive their Miranda rights, officers will be able to repeat any subsequent incriminating statements later in court.” The upshot of all this advice is a question-first practice of some popularity, as one can see from the reported cases describing its use, sometimes in obedience to departmental policy.
IV
When a confession so obtained is offered and challenged, attention must be paid to the conflicting objects of Miranda and question-first. Miranda addressed “interrogation practices … likely … to disable [an individual] from making a free and rational choice” about speaking and held that a suspect must be “adequately and effectively” advised of the choice the Constitution guarantees. The object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed.
Just as “no talismanic incantation [is] required to satisfy [Miranda’s] strictures,” it would be absurd to think that mere recitation of the litany suffices to satisfy Miranda in every conceivable circumstance. “The inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as required by Miranda.’” The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function “effectively” as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier? For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment.
There is no doubt about the answer that proponents of question-first give to this question about the effectiveness of warnings given only after successful interrogation, and we think their answer is correct. By any objective measure, applied to circumstances exemplified here, it is likely that if the interrogators employ the technique of withholding warnings until after interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content. After all, the reason that question-first is catching on is as obvious as its manifest purpose, which is to get a confession the suspect would not make if he understood his rights at the outset; the sensible underlying assumption is that with one confession in hand before the warnings, the interrogator can count on getting its duplicate, with trifling additional trouble. Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again. A more likely reaction on a suspect’s part would be perplexity about the reason for discussing rights at that point, bewilderment being an unpromising frame of mind for knowledgeable decision. What is worse, telling a suspect that “anything you say can and will be used against you,” without expressly excepting the statement just given, could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence being of no avail. Thus, when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and “depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” By the same token, it would ordinarily be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle.
V
Missouri argues that a confession repeated at the end of an interrogation sequence envisioned in a question-first strategy is admissible on the authority of Oregon v. Elstad, but the argument disfigures that case. Although the Elstad Court expressed no explicit conclusion about either officer’s state of mind, it is fair to read Elstad as treating the living room conversation as a good-faith Miranda mistake, not only open to correction by careful warnings before systematic questioning in that particular case, but posing no threat to warn-first practice generally.
The contrast between Elstad and this case reveals a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first. In Elstad, it was not unreasonable to see the occasion for questioning at the station house as presenting a markedly different experience from the short conversation at home; since a reasonable person in the suspect’s shoes could have seen the station house questioning as a new and distinct experience, the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission.
At the opposite extreme are the facts here, which by any objective measure reveal a police strategy adapted to undermine the Miranda warnings. The unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. When the police were finished there was little, if anything, of incriminating potential left unsaid. The warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in the same place as the unwarned segment. When the same officer who had conducted the first phase recited the Miranda warnings, he said nothing to counter the probable misimpression that the advice that anything Seibert said could be used against her also applied to the details of the inculpatory statement previously elicited. In particular, the police did not advise that her prior statement could not be used. Nothing was said or done to dispel the oddity of warning about legal rights to silence and counsel right after the police had led her through a systematic interrogation, and any uncertainty on her part about a right to stop talking about matters previously discussed would only have been aggravated by the way Officer Hanrahan set the scene by saying “we’ve been talking for a little while about what happened on Wednesday the twelfth, haven’t we?” The impression that the further questioning was a mere continuation of the earlier questions and responses was fostered by references back to the confession already given. It would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before. These circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.
VI
Strategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute. Because the question-first tactic effectively threatens to thwart Miranda’s purpose of reducing the risk that a coerced confession would be admitted, and because the facts here do not reasonably support a conclusion that the warnings given could have served their purpose, Seibert’s postwarning statements are inadmissible. The judgment of the Supreme Court of Missouri is affirmed.
Justice KENNEDY, concurring in the judgment.
The interrogation technique used in this case is designed to circumvent Miranda v. Arizona. It undermines the Miranda warning and obscures its meaning. The plurality opinion is correct to conclude that statements obtained through the use of this technique are inadmissible. Although I agree with much in the careful and convincing opinion for the plurality, my approach does differ in some respects, requiring this separate statement.
In my view, Elstad was correct in its reasoning and its result. Elstad reflects a balanced and pragmatic approach to enforcement of the Miranda warning. An officer may not realize that a suspect is in custody and warnings are required. The officer may not plan to question the suspect or may be waiting for a more appropriate time. Skilled investigators often interview suspects multiple times, and good police work may involve referring to prior statements to test their veracity or to refresh recollection. In light of these realities it would be extravagant to treat the presence of one statement that cannot be admitted under Miranda as sufficient reason to prohibit subsequent statements preceded by a proper warning. That approach would serve “neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression of the … testimony.”
This case presents different considerations. The police used a two-step questioning technique based on a deliberate violation of Miranda. The Miranda warning was withheld to obscure both the practical and legal significance of the admonition when finally given. As Justice SOUTER points out, the two-step technique permits the accused to conclude that the right not to respond did not exist when the earlier incriminating statements were made. The strategy is based on the assumption that Miranda warnings will tend to mean less when recited midinterrogation, after inculpatory statements have already been obtained. This tactic relies on an intentional misrepresentation of the protection that Miranda offers and does not serve any legitimate objectives that might otherwise justify its use.
Further, the interrogating officer here relied on the defendant’s prewarning statement to obtain the postwarning statement used against her at trial. The postwarning interview resembled a cross-examination. The officer confronted the defendant with her inadmissible prewarning statements and pushed her to acknowledge them. This shows the temptations for abuse inherent in the two-step technique. Reference to the prewarning statement was an implicit suggestion that the mere repetition of the earlier statement was not independently incriminating. The implicit suggestion was false.
The technique used in this case distorts the meaning of Miranda and furthers no legitimate countervailing interest. The Miranda rule would be frustrated were we to allow police to undermine its meaning and effect. The technique simply creates too high a risk that postwarning statements will be obtained when a suspect was deprived of “knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” When an interrogator uses this deliberate, two-step strategy, predicated upon violating Miranda during an extended interview, postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps.
The plurality concludes that whenever a two-stage interview occurs, admissibility of the postwarning statement should depend on “whether [the] Miranda warnings delivered midstream could have been effective enough to accomplish their object” given the specific facts of the case. This test envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations. In my view, this test cuts too broadly. Miranda’s clarity is one of its strengths, and a multifactor test that applies to every two-stage interrogation may serve to undermine that clarity. I would apply a narrower test applicable only in the infrequent case, such as we have here, in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.
The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient. No curative steps were taken in this case, however, so the postwarning statements are inadmissible and the conviction cannot stand.
For these reasons, I concur in the judgment of the Court.
* * *
In our final case, the Court considered whether physical evidence (as opposed to testimonial evidence) found as a result of a Miranda violation should be excluded from use against the defendant. Justice Kennedy, who concurred with the result in United States v. Patane but did not join the majority opinion, is the only Justice who voted with the winning side in both Patane and Seibert. Because these cases were decided on the same day and both concern evidence obtained after a Miranda violation, Justice Kennedy’s reputation as a swing vote was especially well deserved that day. Students should read his opinion in Patane with care.
Supreme Court of the United States
United States v. Samuel Francis Patane
Decided June 28, 2004 – 542 U.S. 630
Justice THOMAS announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and Justice SCALIA join.
In this case we must decide whether a failure to give a suspect the warnings prescribed by Miranda v. Arizona requires suppression of the physical fruits of the suspect’s unwarned but voluntary statements. The Court has previously addressed this question but has not reached a definitive conclusion. Because the Miranda rule protects against violations of the Self-Incrimination Clause, which, in turn, is not implicated by the introduction at trial of physical evidence resulting from voluntary statements, we answer the question presented in the negative.
I
In June 2001, respondent, Samuel Francis Patane, was arrested for harassing his ex-girlfriend, Linda O’Donnell. He was released on bond, subject to a temporary restraining order that prohibited him from contacting O’Donnell. Respondent apparently violated the restraining order by attempting to telephone O’Donnell. On June 6, 2001, Officer Tracy Fox of the Colorado Springs Police Department began to investigate the matter. On the same day, a county probation officer informed an agent of the Bureau of Alcohol, Tobacco and Firearms (ATF), that respondent, a convicted felon, illegally possessed a .40 Glock pistol. The ATF relayed this information to Detective Josh Benner, who worked closely with the ATF. Together, Detective Benner and Officer Fox proceeded to respondent’s residence.
After reaching the residence and inquiring into respondent’s attempts to contact O’Donnell, Officer Fox arrested respondent for violating the restraining order. Detective Benner attempted to advise respondent of his Miranda rights but got no further than the right to remain silent. At that point, respondent interrupted, asserting that he knew his rights, and neither officer attempted to complete the warning.
Detective Benner then asked respondent about the Glock. Respondent was initially reluctant to discuss the matter, stating: “I am not sure I should tell you anything about the Glock because I don’t want you to take it away from me.” Detective Benner persisted, and respondent told him that the pistol was in his bedroom. Respondent then gave Detective Benner permission to retrieve the pistol. Detective Benner found the pistol and seized it.
A grand jury indicted respondent for possession of a firearm by a convicted felon. The District Court granted respondent’s motion to suppress the firearm, reasoning that the officers lacked probable cause to arrest respondent for violating the restraining order.
The Court of Appeals reversed the District Court’s ruling with respect to probable cause but affirmed the suppression order on respondent’s alternative theory.
As we explain below, the Miranda rule is a prophylactic employed to protect against violations of the Self-Incrimination Clause. The Self-Incrimination Clause, however, is not implicated by the admission into evidence of the physical fruit of a voluntary statement. Accordingly, there is no justification for extending the Miranda rule to this context. And just as the Self-Incrimination Clause primarily focuses on the criminal trial, so too does the Miranda rule. The Miranda rule is not a code of police conduct, and police do not violate the Constitution (or even the Miranda rule, for that matter) by mere failures to warn. For this reason, the exclusionary rule articulated in cases such as Wong Sun does not apply. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings.
II
[B]ecause [the Miranda rule] necessarily sweep[s] beyond the actual protections of the Self-Incrimination Clause, any further extension of these rules must be justified by its necessity for the protection of the actual right against compelled self-incrimination. Indeed, at times the Court has declined to extend Miranda even where it has perceived a need to protect the privilege against self-incrimination.
It is for these reasons that statements taken without Miranda warnings (though not actually compelled) can be used to impeach a defendant’s testimony at trial though the fruits of actually compelled testimony cannot. More generally, the Miranda rule “does not require that the statements [taken without complying with the rule] and their fruits be discarded as inherently tainted.” Such a blanket suppression rule could not be justified by reference to the “Fifth Amendment goal of assuring trustworthy evidence” or by any deterrence rationale, and would therefore fail our close-fit requirement.
Furthermore, the Self-Incrimination Clause contains its own exclusionary rule. It provides that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” Unlike the Fourth Amendment’s bar on unreasonable searches, the Self-Incrimination Clause is self-executing. We have repeatedly explained “that those subjected to coercive police interrogations have an automatic protection from the use of their involuntary statements (or evidence derived from their statements) in any subsequent criminal trial.”
III
Our cases also make clear the related point that a mere failure to give Miranda warnings does not, by itself, violate a suspect’s constitutional rights or even the Miranda rule. This, of course, follows from the nature of the right protected by the Self-Incrimination Clause, which the Miranda rule, in turn, protects. It is “‘a fundamental trial right.’”
It follows that police do not violate a suspect’s constitutional rights (or the Miranda rule) by negligent or even deliberate failures to provide the suspect with the full panoply of warnings prescribed by Miranda. Potential violations occur, if at all, only upon the admission of unwarned statements into evidence at trial. And, at that point, “[t]he exclusion of unwarned statements … is a complete and sufficient remedy” for any perceived Miranda violation.
Thus, unlike unreasonable searches under the Fourth Amendment or actual violations of the Due Process Clause or the Self-Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter. There is therefore no reason to apply the “fruit of the poisonous tree” doctrine of Wong Sun. It is not for this Court to impose its preferred police practices on either federal law enforcement officials or their state counterparts.
IV
In the present case, the Court of Appeals wholly adopted the position that the taking of unwarned statements violates a suspect’s constitutional rights. But Dickersons characterization of Miranda as a constitutional rule does not lessen the need to maintain the closest possible fit between the Self-Incrimination Clause and any judge-made rule designed to protect it. And there is no such fit here. Introduction of the nontestimonial fruit of a voluntary statement, such as respondent’s Glock, does not implicate the Self-Incrimination Clause. The admission of such fruit presents no risk that a defendant’s coerced statements (however defined) will be used against him at a criminal trial. In any case, “[t]he exclusion of unwarned statements … is a complete and sufficient remedy” for any perceived Miranda violation. There is simply no need to extend (and therefore no justification for extending) the prophylactic rule of Miranda to this context.
Similarly, because police cannot violate the Self-Incrimination Clause by taking unwarned though voluntary statements, an exclusionary rule cannot be justified by reference to a deterrence effect on law enforcement.
Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings.
Justice KENNEDY, with whom Justice O’CONNOR joins, concurring in the judgment.
In Oregon v. Elstad evidence obtained following an unwarned interrogation was held admissible. This result was based in large part on our recognition that the concerns underlying the Miranda v. Arizona rule must be accommodated to other objectives of the criminal justice system. I agree with the plurality that Dickerson v. United States did not undermine these precedents and, in fact, cited them in support. Here, it is sufficient to note that the Government presents an even stronger case for admitting the evidence obtained as the result of Patane’s unwarned statement. Admission of nontestimonial physical fruits (the Glock in this case), even more so than the postwarning statements to the police in Elstad does not run the risk of admitting into trial an accused’s coerced incriminating statements against himself. In light of the important probative value of reliable physical evidence, it is doubtful that exclusion can be justified by a deterrence rationale sensitive to both law enforcement interests and a suspect’s rights during an in-custody interrogation. Unlike the plurality, however, I find it unnecessary to decide whether the detective’s failure to give Patane the full Miranda warnings should be characterized as a violation of the Miranda rule itself, or whether there is “[any]thing to deter” so long as the unwarned statements are not later introduced at trial.
With these observations, I concur in the judgment of the Court.
* * *
In our next chapter, we review the basics of how courts consider motions to suppress evidence under the exclusionary rule. We also examine the availability of monetary damages as a remedy for violations of criminal procedure rules grounded in constitutional law. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/04%3A_The_Exclusionary_Rule/4.04%3A_Chapter_34_-_Exclusionary_Rule-_Application_to_the_Miranda_Rule.txt |
THE EXCLUSIONARY RULE
The Basics of Suppression Hearings and Money Damages
Having studied the Court’s precedent on when the exclusionary rule applies, we will now turn to an overview of how suppression hearings work. In addition, this chapter reviews the availability of monetary damages to victims of constitutional violations related to criminal procedure law.
The Basics of Suppression Hearings
When a defendant seeks to exclude evidence allegedly obtained in violation of the constitution, the judge normally decides the suppression motion by preponderance of the evidence.1 With most court motions, the burden of persuasion is on the moving party, meaning that a tie is resolved in favor of the non-moving party. Accordingly, a defendant arguing that a magistrate issued a search warrant without probable cause would have the burden of proof. There are, however, situations in which the prosecution bears the burden of proof. When a confession is challenged as involuntary, for example, “the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary.”2
When defendants seek exclusion of evidence on constitutional grounds, the standard procedure is for the judge to hold a “suppression hearing” outside the presence of the jury. Each side may present witnesses. Police officers commonly testify about what things they observed in advance of a Terry stop or arrest that justified a seizure under review. They also explain what evidence provided probable cause to justify warrantless searches under doctrines such as the automobile exception and exigent circumstances. Defendants may testify in support of their suppression motions, and absent unusual circumstances, their testimony at suppression hearings may not be used against them at trial.3 Under this rule, a defendant may testify that a suitcase belonged to him in order to establish standing to object to an unlawful search of the suitcase, without providing the prosecution a damaging admission usable to prove guilt. If the judge finds for the defendant, then the excluded evidence cannot be shown to the jury. In cases where the prosecution’s primary evidence is challenged as unlawfully obtained—for example, a gun seized from a defendant who is then charged with unlawfully possessing it—a suppression ruling in the defendant’s favor can result in the dismissal of the charges. A defendant who loses her pre-trial suppression motion may, if subsequently convicted, raise her suppression arguments again on appeal.
Our next case explains how courts resolve allegations that a search warrant was issued on the basis of false statements made by police officers to the issuing magistrate.
Supreme Court of the United States
Jerome Franks v. Delaware
Decided June 26, 1978 – 438 U.S. 154
Mr. Justice BLACKMUN delivered the opinion of the Court.
This case presents an important and longstanding issue of Fourth Amendment law. Does a defendant in a criminal proceeding ever have the right, under the Fourth and Fourteenth Amendments, subsequent to the ex parte issuance of a search warrant, to challenge the truthfulness of factual statements made in an affidavit supporting the warrant?
In the present case the Supreme Court of Delaware held, as a matter of first impression for it, that a defendant under no circumstances may so challenge the veracity of a sworn statement used by police to procure a search warrant. We reverse, and we hold that, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.
I
The controversy over the veracity of the search warrant affidavit in this case arose in connection with petitioner Jerome Franks’ state conviction for rape, kidnaping, and burglary. On Friday, March 5, 1976, Mrs. Cynthia Bailey told police in Dover, Del., that she had been confronted in her home earlier that morning by a man with a knife, and that he had sexually assaulted her. She described her assailant’s age, race, height, build, and facial hair, and gave a detailed description of his clothing as consisting of a white thermal undershirt, black pants with a silver or gold buckle, a brown leather three-quarter-length coat, and a dark knit cap that he wore pulled down around his eyes.
That same day, petitioner Franks coincidentally was taken into custody for an assault involving a 15-year-old girl, Brenda B. ______, six days earlier. After his formal arrest, and while awaiting a bail hearing in Family Court, petitioner allegedly stated to Robert McClements, the youth officer accompanying him, that he was surprised the bail hearing was “about Brenda B. ______. I know her. I thought you said Bailey. I don’t know her.” At the time of this statement, the police allegedly had not yet recited to petitioner his rights under Miranda v. Arizona.
On the following Monday, March 8, Officer McClements happened to mention the courthouse incident to a detective, Ronald R. Brooks, who was working on the Bailey case. On March 9, Detective Brooks and Detective Larry D. Gray submitted a sworn affidavit to a Justice of the Peace in Dover, in support of a warrant to search petitioner’s apartment. In paragraph 8 of the affidavit’s “probable cause page” mention was made of petitioner’s statement to McClements. In paragraph 10, it was noted that the description of the assailant given to the police by Mrs. Bailey included the above-mentioned clothing. Finally, the affidavit also described the attempt made by police to confirm that petitioner’s typical outfit matched that of the assailant. Paragraph 15 recited: “On Tuesday, 3/9/76, your affiant contacted Mr. James Williams and Mr. Wesley Lucas of the Delaware Youth Center where Jerome Franks is employed and did have personal conversation with both these people.” Paragraphs 16 and 17 respectively stated: “Mr. James Williams revealed to your affiant that the normal dress of Jerome Franks does consist of a white knit thermal undershirt and a brown leather jacket,” and “Mr. Wesley Lucas revealed to your affiant that in addition to the thermal undershirt and jacket, Jerome Franks often wears a dark green knit hat.”
The warrant was issued on the basis of this affidavit. Pursuant to the warrant, police searched petitioner’s apartment and found a white thermal undershirt, a knit hat, dark pants, and a leather jacket, and, on petitioner’s kitchen table, a single-blade knife. All these ultimately were introduced in evidence at trial.
Prior to the trial, however, petitioner’s counsel filed a written motion to suppress the clothing and the knife found in the search; this motion alleged that the warrant on its face did not show probable cause and that the search and seizure were in violation of the Fourth and Fourteenth Amendments. At the hearing on the motion to suppress, defense counsel orally amended the challenge to include an attack on the veracity of the warrant affidavit; he also specifically requested the right to call as witnesses Detective Brooks, Wesley Lucas of the Youth Center, and James D. Morrison, formerly of the Youth Center. Counsel asserted that Lucas and Morrison would testify that neither had been personally interviewed by the warrant affiants, and that, although they might have talked to another police officer, any information given by them to that officer was “somewhat different” from what was recited in the affidavit. Defense counsel charged that the misstatements were included in the affidavit not inadvertently, but in “bad faith.” Counsel also sought permission to call Officer McClements and petitioner as witnesses, to seek to establish that petitioner’s courthouse statement to police had been obtained in violation of petitioner’s Miranda rights, and that the search warrant was thereby tainted as the fruit of an illegally obtained confession.
In rebuttal, the State’s attorney argued [] that any challenge to a search warrant was to be limited to questions of sufficiency based on the face of the affidavit. The State objected to petitioner’s “going behind [the warrant affidavit] in any way,” and argued that the court must decide petitioner’s motion “on the four corners” of the affidavit.
The trial court sustained the State’s objection to petitioner’s proposed evidence. The motion to suppress was denied, and the clothing and knife were admitted as evidence at the ensuing trial. Petitioner was convicted. In a written motion for judgment of acquittal and/or new trial, petitioner repeated his objection to the admission of the evidence, stating that he “should have been allowed to impeach the Affidavit used in the Search Warrant to show purposeful misrepresentation of information contained therein.” The motion was denied, and petitioner was sentenced to two consecutive terms of 25 years each and an additional consecutive life sentence.
On appeal, the Supreme Court of Delaware affirmed. Franks’ petition for certiorari presented only the issue whether the trial court had erred in refusing to consider his allegation of misrepresentation in the warrant affidavit.
III
Whether the Fourth and Fourteenth Amendments, and the derivative exclusionary rule made applicable to the States under Mapp v. Ohio, ever mandate that a defendant be permitted to attack the veracity of a warrant affidavit after the warrant has been issued and executed, is a question that encounters conflicting values. The bulwark of Fourth Amendment protection, of course, is the Warrant Clause, requiring that, absent certain exceptions, police obtain a warrant from a neutral and disinterested magistrate before embarking upon a search. In deciding today that, in certain circumstances, a challenge to a warrant’s veracity must be permitted, we derive our ground from language of the Warrant Clause itself, which surely takes the affiant’s good faith as its premise: “[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation….” “[W]hen the Fourth Amendment demands a factual showing sufficient to comprise ‘probable cause,’ the obvious assumption is that there will be a truthful showing.” This does not mean “truthful” in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily. But surely it is to be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true. It is established law that a warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter. If an informant’s tip is the source of information, the affidavit must recite “some of the underlying circumstances from which the informant concluded” that relevant evidence might be discovered, and “some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, … was ‘credible’ or his information ‘reliable.’” Because it is the magistrate who must determine independently whether there is probable cause, it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or reckless false statement, were to stand beyond impeachment.
First, a flat ban on impeachment of veracity could denude the probable-cause requirement of all real meaning. The requirement that a warrant not issue “but upon probable cause, supported by Oath or affirmation,” would be reduced to a nullity if a police officer was able to use deliberately falsified allegations to demonstrate probable cause, and, having misled the magistrate, then was able to remain confident that the ploy was worthwhile. It is this specter of intentional falsification that, we think, has evoked such widespread opposition to the flat nonimpeachment rule. On occasion, of course, an instance of deliberate falsity will be exposed and confirmed without a special inquiry either at trial or at a hearing on the sufficiency of the affidavit. A flat nonimpeachment rule would bar re-examination of the warrant even in these cases.
Second, the hearing before the magistrate not always will suffice to discourage lawless or reckless misconduct. The pre-search proceeding is necessarily ex parte, since the subject of the search cannot be tipped off to the application for a warrant lest he destroy or remove evidence. The usual reliance of our legal system on adversary proceedings itself should be an indication that an ex parte inquiry is likely to be less vigorous. The magistrate has no acquaintance with the information that may contradict the good faith and reasonable basis of the affiant’s allegations. The pre-search proceeding will frequently be marked by haste, because of the understandable desire to act before the evidence disappears; this urgency will not always permit the magistrate to make an extended independent examination of the affiant or other witnesses.
Third, the alternative sanctions of a perjury prosecution, administrative discipline, contempt, or a civil suit are not likely to fill the gap. Mapp v. Ohio implicitly rejected the adequacy of these alternatives. Mr. Justice Douglas noted this in his concurrence in Mapp. “‘Self-scrutiny is a lofty ideal, but its exaltation reaches new heights if we expect a District Attorney to prosecute himself or his associates for well-meaning violations of the search and seizure clause during a raid the District Attorney or his associates have ordered.’”
Fourth, allowing an evidentiary hearing, after a suitable preliminary proffer of material falsity, would not diminish the importance and solemnity of the warrant-issuing process. It is the ex parte nature of the initial hearing, rather than the magistrate’s capacity, that is the reason for the review. A magistrate’s determination is presently subject to review before trial as to sufficiency without any undue interference with the dignity of the magistrate’s function. Our reluctance today to extend the rule of exclusion beyond instances of deliberate misstatements, and those of reckless disregard, leaves a broad field where the magistrate is the sole protection of a citizen’s Fourth Amendment rights, namely, in instances where police have been merely negligent in checking or recording the facts relevant to a probable-cause determination.
Fifth, the claim that a post-search hearing will confuse the issue of the defendant’s guilt with the issue of the State’s possible misbehavior is footless. The hearing will not be in the presence of the jury. An issue extraneous to guilt already is examined in any probable-cause determination or review of probable cause. Nor, if a sensible threshold showing is required and sensible substantive requirements for suppression are maintained, need there be any new large-scale commitment of judicial resources; many claims will wash out at an early stage, and the more substantial ones in any event would require judicial resources for vindication if the suggested alternative sanctions were truly to be effective. The requirement of a substantial preliminary showing would suffice to prevent the misuse of a veracity hearing for purposes of discovery or obstruction. And because we are faced today with only the question of the integrity of the affiant’s representations as to his own activities, we need not decide, and we in no way predetermine, the difficult question whether a reviewing court must ever require the revelation of the identity of an informant once a substantial preliminary showing of falsity has been made.
Sixth and finally, as to the argument that the exclusionary rule should not be extended to a “new” area, we cannot regard any such extension really to be at issue here. Despite the deep skepticism of Members of this Court as to the wisdom of extending the exclusionary rule to collateral areas, such as civil or grand jury proceedings, the Court has not questioned, in the absence of a more efficacious sanction, the continued application of the rule to suppress evidence from the State’s case where a Fourth Amendment violation has been substantial and deliberate. We see no principled basis for distinguishing between the question of the sufficiency of an affidavit, which also is subject to a post-search re-examination, and the question of its integrity.
IV
In sum, and to repeat with some embellishment what we stated at the beginning of this opinion: There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue.
Because of Delaware’s absolute rule, its courts did not have occasion to consider the proffer put forward by petitioner Franks. Since the framing of suitable rules to govern proffers is a matter properly left to the States, we decline ourselves to pass on petitioner’s proffer. The judgment of the Supreme Court of Delaware is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Notes, Comments, and Questions
The details of suppression motion practice differ markedly among jurisdictions and even among judges in the same courthouse. Students who eventually practice criminal law must study carefully the rules and preferences of the judges before whom they appear. The overwhelming bulk of criminal cases never go to trial, and suppression hearings are often the most important court proceeding in a case.
One risk of which defense counsel must be aware concerns the use of suppression hearing testimony against a defendant should a case eventually go to trial. While such testimony cannot be used during the prosecution’s case in chief (that is, cannot be used substantively to prove the defendant’s guilt), see Simmons v. United States, 390 U.S. 377, 390 (1968), it can be used to impeach the defendant should her trial testimony contradict what she said at the hearing. See, e.g., United States v. Beltran-Gutierrez, 19 F.3d 1287, 1290–91 (9th Cir. 1994); United States v. Geraldo, 271 F.3d 1112, 1116 (D.C. Cir. 2001).
An Introduction to the Availability of Monetary Damages
Much as members of the public commonly overestimate the role of the exclusionary rule in freeing guilty defendants on “technicalities,” public opinion also overestimates the availability of money damages to the victims of police misconduct. For multiple reasons, persons who suffer unlawful searches and seizures—as well as those who experience violations of their rights related to interrogations—rarely recover money.
First, many people under police investigation—the people most likely to undergo searches, seizures, and interrogations, whether lawful or unlawful—are criminals. Imagine, for example, that police violate the “knock-and-announce” rule and break down a suspect’s door unlawfully. Then, while executing a valid search warrant, police find cocaine. Under the rule of Hudson v. Michigan (Chapter 32), the knock-and-announce violation would not stop prosecutors from using the seized drugs at trial to convict the suspect of illegal possession. In theory, the convicted defendant could then sue police for damages related to the breaking of his door. A lawsuit against state officials could be brought under “Section 1983,” as 42 U.S.C. § 1983 is commonly known. A suit against federal officials could be brought under the remedy provided in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), which provides a civil remedy (known as a “Bivens action”) for certain constitutional violations by federal agents. See also Hernandez v. Mesa, 140 S. Ct. 735 (U.S. 2020) (holding that family of a Mexican victim of unreasonable cross-border shooting by U.S. Border Patrol agent cannot bring Bivens action); Egbert v. Boule, 142 S. Ct. 457 (2021) (futher limiting the scope of Bivens).
In practice, however, the defendant would likely have trouble finding a lawyer willing to take the case. In order to make his case to jurors, the convicted criminal defendant—now a civil plaintiff—would need to describe the incident, which involves police finding cocaine at his home. Further, the plaintiff’s testimony could be impeached with evidence of the drug conviction.4 Jurors have been known to disfavor claims brought by convicted felons.
While a prevailing plaintiff in a “constitutional tort” case against state officials is entitled to reasonable attorney’s fees paid by the defendant,5 a plaintiff who loses must pay his own lawyer. Therefore, unless the victim of police misconduct has money for legal bills, he must convince a lawyer to take his case on a contingent fee basis, which a lawyer is likely to do only if she expects to win. In addition, if the actual damages awarded to prevailing plaintiffs are low, lawyers may not profit unless they win a high percentage of their cases. A lawyer who represents an indigent civil rights plaintiff on a contingency basis often pays up front for expenses such as travel, depositions, and expert witnesses. If the client loses, the lawyer may never be repaid for expenses in the tens of thousands of dollars. If the client wins, then the lawyer must hope that the judge’s definition of a “reasonable fee” is fair, which may not always be true.6 Unless a lawyer is taking the rare civil rights case on the side of a different kind of practice, the lawyer can make a living only if occasional clients win sizeable judgments. But juries have been known to award trivial sums, even in cases of serious misconduct.7 While some cases do yield large judgments,8 the overwhelming majority of practicing lawyers have no interest in representing civil rights plaintiffs who are unable to pay hourly bills. Many would-be plaintiffs with credible claims of unlawful searches and seizures, including police brutality and wrongful shootings, often cannot find lawyers to bring their cases.
Second, even if a plaintiff wins a court ruling that police violated his constitutional rights, he may be denied monetary compensation under the doctrine of “qualified immunity.” Under qualified immunity, a defendant need not pay monetary damages unless her conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known. In other words, even if a court finds that the defendant violated the plaintiff’s constitutional rights, the plaintiff cannot recover unless the defendant’s behavior violated “clearly established” law.
Supreme Court of the United States
Andrew Kisela v. Amy Hughes
Decided April 2, 2018 – 138 S. Ct. 1148
PER CURIAM.
Petitioner Andrew Kisela, a police officer in Tucson, Arizona, shot respondent Amy Hughes. Kisela and two other officers had arrived on the scene after hearing a police radio report that a woman was engaging in erratic behavior with a knife. They had been there but a few minutes, perhaps just a minute. When Kisela fired, Hughes was holding a large kitchen knife, had taken steps toward another woman standing nearby, and had refused to drop the knife after at least two commands to do so. The question is whether at the time of the shooting Kisela’s actions violated clearly established law.
The record, viewed in the light most favorable to Hughes, shows the following. In May 2010, somebody in Hughes’ neighborhood called 911 to report that a woman was hacking a tree with a kitchen knife. Kisela and another police officer, Alex Garcia, heard about the report over the radio in their patrol car and responded. A few minutes later the person who had called 911 flagged down the officers; gave them a description of the woman with the knife; and told them the woman had been acting erratically. About the same time, a third police officer, Lindsay Kunz, arrived on her bicycle.
Garcia spotted a woman, later identified as Sharon Chadwick, standing next to a car in the driveway of a nearby house. A chain-link fence with a locked gate separated Chadwick from the officers. The officers then saw another woman, Hughes, emerge from the house carrying a large knife at her side. Hughes matched the description of the woman who had been seen hacking a tree. Hughes walked toward Chadwick and stopped no more than six feet from her.
All three officers drew their guns. At least twice they told Hughes to drop the knife. Viewing the record in the light most favorable to Hughes, Chadwick said “take it easy” to both Hughes and the officers. Hughes appeared calm, but she did not acknowledge the officers’ presence or drop the knife. The top bar of the chain-link fence blocked Kisela’s line of fire, so he dropped to the ground and shot Hughes four times through the fence. Then the officers jumped the fence, handcuffed Hughes, and called paramedics, who transported her to a hospital. There she was treated for non-life-threatening injuries. Less than a minute had transpired from the moment the officers saw Chadwick to the moment Kisela fired shots.
All three of the officers later said that at the time of the shooting they subjectively believed Hughes to be a threat to Chadwick. After the shooting, the officers discovered that Chadwick and Hughes were roommates, that Hughes had a history of mental illness, and that Hughes had been upset with Chadwick over a \$20 debt. In an affidavit produced during discovery, Chadwick said that a few minutes before the shooting her boyfriend had told her Hughes was threatening to kill Chadwick’s dog, named Bunny. Chadwick “came home to find” Hughes “somewhat distressed,” and Hughes was in the house holding Bunny “in one hand and a kitchen knife in the other.” Hughes asked Chadwick if she “wanted [her] to use the knife on the dog.” The officers knew none of this, though. Chadwick went outside to get \$20 from her car, which is when the officers first saw her. In her affidavit Chadwick said that she did not feel endangered at any time. Based on her experience as Hughes’ roommate, Chadwick stated that Hughes “occasionally has episodes in which she acts inappropriately,” but “she is only seeking attention.”
Hughes sued Kisela, alleging that Kisela had used excessive force in violation of the Fourth Amendment. The District Court granted summary judgment to Kisela, but the Court of Appeals for the Ninth Circuit reversed. Kisela then filed a petition for certiorari in this Court. That petition is now granted.
Here, the Court need not, and does not, decide whether Kisela violated the Fourth Amendment when he used deadly force against Hughes. For even assuming a Fourth Amendment violation occurred—a proposition that is not at all evident—on these facts Kisela was at least entitled to qualified immunity.
“Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” “Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.”
Although “this Court’s caselaw does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.” “In other words, immunity protects all but the plainly incompetent or those who knowingly violate the law.” This Court has “‘repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality.’”
“[S]pecificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” Use of excessive force is an area of the law “in which the result depends very much on the facts of each case,” and thus police officers are entitled to qualified immunity unless existing precedent “squarely governs” the specific facts at issue. Precedent involving similar facts can help move a case beyond the otherwise “hazy border between excessive and acceptable force” and thereby provide an officer notice that a specific use of force is unlawful.
“Of course, general statements of the law are not inherently incapable of giving fair and clear warning to officers.” But the general rules [] “do not by themselves create clearly established law outside an ‘obvious case.’” Where constitutional guidelines seem inapplicable or too remote, it does not suffice for a court simply to state that an officer may not use unreasonable and excessive force, deny qualified immunity, and then remit the case for a trial on the question of reasonableness. An officer “cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” That is a necessary part of the qualified-immunity standard, and it is a part of the standard that the Court of Appeals here failed to implement in a correct way.
Kisela says he shot Hughes because, although the officers themselves were in no apparent danger, he believed she was a threat to Chadwick. Kisela had mere seconds to assess the potential danger to Chadwick. He was confronted with a woman who had just been seen hacking a tree with a large kitchen knife and whose behavior was erratic enough to cause a concerned bystander to call 911 and then flag down Kisela and Garcia. Kisela was separated from Hughes and Chadwick by a chain-link fence; Hughes had moved to within a few feet of Chadwick; and she failed to acknowledge at least two commands to drop the knife. Those commands were loud enough that Chadwick, who was standing next to Hughes, heard them. This is far from an obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment.
[T]he petition for certiorari is granted; the judgment of the Court of Appeals is reversed; and the case is remanded for further proceedings consistent with this opinion.
Justice SOTOMAYOR, with whom Justice GINSBURG joins, dissenting.
Officer Andrew Kisela shot Amy Hughes while she was speaking with her roommate, Sharon Chadwick, outside of their home. The record, properly construed at this stage, shows that at the time of the shooting: Hughes stood stationary about six feet away from Chadwick, appeared “composed and content” and held a kitchen knife down at her side with the blade facing away from Chadwick. Hughes was nowhere near the officers, had committed no illegal act, was suspected of no crime, and did not raise the knife in the direction of Chadwick or anyone else. Faced with these facts, the two other responding officers held their fire, and one testified that he “wanted to continue trying verbal command[s] and see if that would work.” But not Kisela. He thought it necessary to use deadly force, and so, without giving a warning that he would open fire, he shot Hughes four times, leaving her seriously injured.
If this account of Kisela’s conduct sounds unreasonable, that is because it was. And yet, the Court today insulates that conduct from liability under the doctrine of qualified immunity, holding that Kisela violated no “clearly established” law. I disagree. Viewing the facts in the light most favorable to Hughes, as the Court must at summary judgment, a jury could find that Kisela violated Hughes’ clearly established Fourth Amendment rights by needlessly resorting to lethal force. In holding otherwise, the Court misapprehends the facts and misapplies the law, effectively treating qualified immunity as an absolute shield. I therefore respectfully dissent.
I
This case arrives at our doorstep on summary judgment, so we must “view the evidence … in the light most favorable to” Hughes, the nonmovant, “with respect to the central facts of this case.” The majority purports to honor this well-settled principle, but its efforts fall short. Although the majority sets forth most of the relevant events that transpired, it conspicuously omits several critical facts and draws premature inferences that bear on the qualified-immunity inquiry. Those errors are fatal to its analysis, because properly construing all of the facts in the light most favorable to Hughes, and drawing all inferences in her favor, a jury could find that the following events occurred on the day of Hughes’ encounter with the Tucson police.
On May 21, 2010, Kisela and Officer-in-Training Alex Garcia received a “‘check welfare’” call about a woman chopping away at a tree with a knife. They responded to the scene, where they were informed by the person who had placed the call (not Chadwick) that the woman with the knife had been acting “erratically.” A third officer, Lindsay Kunz, later joined the scene. The officers observed Hughes, who matched the description given to the officers of the woman alleged to have been cutting the tree, emerge from a house with a kitchen knife in her hand. Hughes exited the front door and approached Chadwick, who was standing outside in the driveway.
Hughes then stopped about six feet from Chadwick, holding the kitchen knife down at her side with the blade pointed away from Chadwick. Hughes and Chadwick conversed with one another; Hughes appeared “composed and content,” and did not look angry. At no point during this exchange did Hughes raise the kitchen knife or verbally threaten to harm Chadwick or the officers. Chadwick later averred that, during the incident, she was never in fear of Hughes and “was not the least bit threatened by the fact that [Hughes] had a knife in her hand” and that Hughes “never acted in a threatening manner.” The officers did not observe Hughes commit any crime, nor was Hughes suspected of committing one.
Nevertheless, the officers hastily drew their guns and ordered Hughes to drop the knife. The officers gave that order twice, but the commands came “in quick succession.” The evidence in the record suggests that Hughes may not have heard or understood the officers’ commands and may not have been aware of the officers’ presence at all. Although the officers were in uniform, they never verbally identified themselves as law enforcement officers.
Kisela did not wait for Hughes to register, much less respond to, the officers’ rushed commands. Instead, Kisela immediately and unilaterally escalated the situation. Without giving any advance warning that he would shoot, and without attempting less dangerous methods to deescalate the situation, he dropped to the ground and shot four times at Hughes (who was stationary) through a chain-link fence. After being shot, Hughes fell to the ground, screaming and bleeding from her wounds. She looked at the officers and asked, “‘Why’d you shoot me?’” Hughes was immediately transported to the hospital, where she required treatment for her injuries. Kisela alone resorted to deadly force in this case. Confronted with the same circumstances as Kisela, neither of his fellow officers took that drastic measure.
II
Police officers are not entitled to qualified immunity if “(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’” Faithfully applying that well-settled standard, the Ninth Circuit held that a jury could find that Kisela violated Hughes’ clearly established Fourth Amendment rights. That conclusion was correct.
A
I begin with the first step of the qualified-immunity inquiry: whether there was a violation of a constitutional right. [Justice Sotomayer concluded (consistent with the Ninth Circuit opinion) that the “facts would permit a jury to conclude that Kisela acted outside the bounds of the Fourth Amendment by shooting Hughes four times.”]
Rather than defend the reasonableness of Kisela’s conduct, the majority sidesteps the inquiry altogether and focuses instead on the “clearly established” prong of the qualified-immunity analysis. To be “‘clearly established’ … [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” That standard is not nearly as onerous as the majority makes it out to be. As even the majority must acknowledge, this Court has long rejected the notion that “an official action is protected by qualified immunity unless the very action in question has previously been held unlawful,” “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” At its core, then, the “clearly established” inquiry boils down to whether Kisela had “fair notice” that he acted unconstitutionally.
The answer to that question is yes. This Court’s precedents make clear that a police officer may only deploy deadly force against an individual if the officer “has probable cause to believe that the [person] poses a threat of serious physical harm, either to the officer or to others.” It is equally well established that any use of lethal force must be justified by some legitimate governmental interest. Consistent with those clearly established principles, and contrary to the majority’s conclusion, Ninth Circuit precedent predating these events further confirms that Kisela’s conduct was clearly unreasonable. Because Kisela plainly lacked any legitimate interest justifying the use of deadly force against a woman who posed no objective threat of harm to officers or others, had committed no crime, and appeared calm and collected during the police encounter, he was not entitled to qualified immunity.
In sum, precedent existing at the time of the shooting clearly established the unconstitutionality of Kisela’s conduct. The majority’s decision, no matter how much it says otherwise, ultimately rests on a faulty premise: that those cases are not identical to this one. But that is not the law, for our cases have never required a factually identical case to satisfy the “clearly established” standard. It is enough that governing law places “the constitutionality of the officer’s conduct beyond debate.” Because, taking the facts in the light most favorable to Hughes, it is “beyond debate” that Kisela’s use of deadly force was objectively unreasonable, he was not entitled to summary judgment on the basis of qualified immunity.
III
This unwarranted summary reversal is symptomatic of “a disturbing trend regarding the use of this Court’s resources” in qualified-immunity cases. As I have previously noted, this Court routinely displays an unflinching willingness “to summarily reverse courts for wrongly denying officers the protection of qualified immunity” but “rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases.” Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.
The majority today exacerbates that troubling asymmetry. Its decision is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished. Because there is nothing right or just under the law about this, I respectfully dissent.
Notes, Comments, and Questions
Recently, the Court again constrained the ability of plaintiffs to sue police. In Vega v. Tekoh, 142 S. Ct. 858 (2022), the Court held that when police violate Miranda by conducting a custodial interrogation without delivering the required warnings, the Miranda violation does not provide the basis for a Section 1983 claim.
Our next case involves serious violations of the Court’s rule set forth in Brady v. Maryland, 373 U.S. 83 (1963), which requires that prosecutors provide material exculpatory evidence in their possession to the defense. Although this book does not explore the Brady rule, students should recognize its importance to avoiding wrongful convictions. Our next case illustrates the impediments in the path of a defendant who seeks monetary damages after winning release from prison by proving a Brady violation.
A bit of background will help students understand the plaintiff’s cause of action. Because prosecutors (much like judges) normally enjoy absolute immunity from Section 1983 liability for actions taken during and in preparation for trial, see Buckley v. Fitzsimmons, 509 U.S. 259 (1993), plaintiff John Thompson alleged that district attorney Harry Connick failed to train his prosecutors adequately about their duty under Brady to produce evidence. Only especially egregious failures to train can justify civil liability.
Supreme Court of the United States
Harry F. Connick v. John Thompson
Decided March 29, 2011—563 U.S. 51
Justice THOMAS delivered the opinion of the Court.
The Orleans Parish District Attorney’s Office now concedes that, in prosecuting respondent John Thompson for attempted armed robbery, prosecutors failed to disclose evidence that should have been turned over to the defense under Brady v. Maryland. Thompson was convicted. Because of that conviction Thompson elected not to testify in his own defense in his later trial for murder, and he was again convicted. Thompson spent 18 years in prison, including 14 years on death row. One month before Thompson’s scheduled execution, his investigator discovered the undisclosed evidence from his armed robbery trial. The reviewing court determined that the evidence was exculpatory, and both of Thompson’s convictions were vacated.
After his release from prison, Thompson sued petitioner Harry Connick, in his official capacity as the Orleans Parish District Attorney, for damages. Thompson alleged that Connick had failed to train his prosecutors adequately about their duty to produce exculpatory evidence and that the lack of training had caused the nondisclosure in Thompson’s robbery case. The jury awarded Thompson \$14 million, and the Court of Appeals for the Fifth Circuit affirmed by an evenly divided en banc court. We granted certiorari to decide whether a district attorney’s office may be held liable under § 1983 for failure to train based on a single Brady violation. We hold that it cannot.
A
In early 1985, John Thompson was charged with the murder of Raymond T. Liuzza, Jr. in New Orleans. Publicity following the murder charge led the victims of an unrelated armed robbery to identify Thompson as their attacker. The district attorney charged Thompson with attempted armed robbery.
As part of the robbery investigation, a crime scene technician took from one of the victims’ pants a swatch of fabric stained with the robber’s blood. Approximately one week before Thompson’s armed robbery trial, the swatch was sent to the crime laboratory. Two days before the trial, assistant district attorney Bruce Whittaker received the crime lab’s report, which stated that the perpetrator had blood type B. There is no evidence that the prosecutors ever had Thompson’s blood tested or that they knew what his blood type was. Whittaker claimed he placed the report on assistant district attorney James Williams’ desk, but Williams denied seeing it. The report was never disclosed to Thompson’s counsel.
Williams tried the armed robbery case with assistant district attorney Gerry Deegan. On the first day of trial, Deegan checked all of the physical evidence in the case out of the police property room, including the blood-stained swatch. Deegan then checked all of the evidence but the swatch into the courthouse property room. The prosecutors did not mention the swatch or the crime lab report at trial, and the jury convicted Thompson of attempted armed robbery.
A few weeks later, Williams and special prosecutor Eric Dubelier tried Thompson for the Liuzza murder. Because of the armed robbery conviction, Thompson chose not to testify in his own defense. He was convicted and sentenced to death. In the 14 years following Thompson’s murder conviction, state and federal courts reviewed and denied his challenges to the conviction and sentence. The State scheduled Thompson’s execution for May 20, 1999.
In late April 1999, Thompson’s private investigator discovered the crime lab report from the armed robbery investigation in the files of the New Orleans Police Crime Laboratory. Thompson was tested and found to have blood type O, proving that the blood on the swatch was not his. Thompson’s attorneys presented this evidence to the district attorney’s office, which, in turn, moved to stay the execution and vacate Thompson’s armed robbery conviction. The Louisiana Court of Appeals then reversed Thompson’s murder conviction, concluding that the armed robbery conviction unconstitutionally deprived Thompson of his right to testify in his own defense at the murder trial. In 2003, the district attorney’s office retried Thompson for Liuzza’s murder. The jury found him not guilty.
B
Thompson then brought this action against the district attorney’s office, Connick, Williams, and others, alleging that their conduct caused him to be wrongfully convicted, incarcerated for 18 years, and nearly executed. The only claim that proceeded to trial was Thompson’s claim under § 1983 that the district attorney’s office had violated Brady by failing to disclose the crime lab report in his armed robbery trial. Thompson alleged liability under two theories: (1) the Brady violation was caused by an unconstitutional policy of the district attorney’s office; and (2) the violation was caused by Connick’s deliberate indifference to an obvious need to train the prosecutors in his office in order to avoid such constitutional violations.
Before trial, Connick conceded that the failure to produce the crime lab report constituted a Brady violation. Accordingly, the District Court instructed the jury that the “only issue” was whether the nondisclosure was caused by either a policy, practice, or custom of the district attorney’s office or a deliberately indifferent failure to train the office’s prosecutors.
Although no prosecutor remembered any specific training session regarding Brady prior to 1985, it was undisputed at trial that the prosecutors were familiar with the general Brady requirement that the State disclose to the defense evidence in its possession that is favorable to the accused. Prosecutors testified that office policy was to turn crime lab reports and other scientific evidence over to the defense. They also testified that, after the discovery of the undisclosed crime lab report in 1999, prosecutors disagreed about whether it had to be disclosed under Brady absent knowledge of Thompson’s blood type.
The jury rejected Thompson’s claim that an unconstitutional office policy caused the Brady violation, but found the district attorney’s office liable for failing to train the prosecutors. The jury awarded Thompson \$14 million in damages, and the District Court added more than \$1 million in attorney’s fees and costs.
After the verdict, Connick renewed his objection—which he had raised on summary judgment—that he could not have been deliberately indifferent to an obvious need for more or different Brady training because there was no evidence that he was aware of a pattern of similar Brady violations. The District Court rejected this argument.
A panel of the Court of Appeals for the Fifth Circuit affirmed. The Court of Appeals sitting en banc vacated the panel opinion, granted rehearing, and divided evenly, thereby affirming the District Court. We granted certiorari.
II
The Brady violation conceded in this case occurred when one or more of the four prosecutors involved with Thompson’s armed robbery prosecution failed to disclose the crime lab report to Thompson’s counsel. Under Thompson’s failure-to-train theory, he bore the burden of proving both (1) that Connick, the policymaker for the district attorney’s office, was deliberately indifferent to the need to train the prosecutors about their Brady disclosure obligation with respect to evidence of this type and (2) that the lack of training actually caused the Brady violation in this case. Connick argues that he was entitled to judgment as a matter of law because Thompson did not prove that he was on actual or constructive notice of, and therefore deliberately indifferent to, a need for more or different Brady training. We agree.
A
Title 42 U.S.C. § 1983 provides in relevant part:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ….”
A municipality or other local government may be liable under this section if the governmental body itself “subjects” a person to a deprivation of rights or “causes” a person “to be subjected” to such deprivation. But, under § 1983, local governments are responsible only for “their own illegal acts.” They are not vicariously liable under § 1983 for their employees’ actions.
Plaintiffs who seek to impose liability on local governments under § 1983 must prove that “action pursuant to official municipal policy” caused their injury. Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law. These are “action[s] for which the municipality is actually responsible.”
In limited circumstances, a local government’s decision not to train certain employees about their legal duty to avoid violating citizens’ rights may rise to the level of an official government policy for purposes of § 1983. A municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train. To satisfy the statute, a municipality’s failure to train its employees in a relevant respect must amount to “deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.” Only then “can such a shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under § 1983.”
“‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Thus, when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program. The city’s “policy of inaction” in light of notice that its program will cause constitutional violations “is the functional equivalent of a decision by the city itself to violate the Constitution.” A less stringent standard of fault for a failure-to-train claim “would result in de facto respondeat superior liability on municipalities ….”
B
A pattern of similar constitutional violations by untrained employees is “ordinarily necessary” to demonstrate deliberate indifference for purposes of failure to train. Policymakers’ “continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action—the ‘deliberate indifference’—necessary to trigger municipal liability.” Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.
Although Thompson does not contend that he proved a pattern of similar Brady violations, he points out that, during the ten years preceding his armed robbery trial, Louisiana courts had overturned four convictions because of Brady violations by prosecutors in Connick’s office. Those four reversals could not have put Connick on notice that the office’s Brady training was inadequate with respect to the sort of Brady violation at issue here. None of those cases involved failure to disclose blood evidence, a crime lab report, or physical or scientific evidence of any kind. Because those incidents are not similar to the violation at issue here, they could not have put Connick on notice that specific training was necessary to avoid this constitutional violation.
1
Instead of relying on a pattern of similar Brady violations, Thompson relies on [] “single-incident” liability. He contends that the Brady violation in his case was the “obvious” consequence of failing to provide specific Brady training, and that this showing of “obviousness” can substitute for the pattern of violations ordinarily necessary to establish municipal culpability.
Failure to train prosecutors in their Brady obligations does not fall within the narrow range of [] single-incident liability. Attorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment. Before they may enter the profession and receive a law license, all attorneys must graduate from law school or pass a substantive examination; attorneys in the vast majority of jurisdictions must do both.
In addition, attorneys in all jurisdictions must satisfy character and fitness standards to receive a law license and are personally subject to an ethical regime designed to reinforce the profession’s standards. An attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.
In light of this regime of legal training and professional responsibility, recurring constitutional violations are not the “obvious consequence” of failing to provide prosecutors with formal in-house training about how to obey the law. Prosecutors are not only equipped but are also ethically bound to know what Brady entails and to perform legal research when they are uncertain. A district attorney is entitled to rely on prosecutors’ professional training and ethical obligations in the absence of specific reason, such as a pattern of violations, to believe that those tools are insufficient to prevent future constitutional violations in “the usual and recurring situations with which [the prosecutors] must deal.” A licensed attorney making legal judgments, in his capacity as a prosecutor, about Brady material simply does not present the same “highly predictable” constitutional danger as [an] untrained officer.
We do not assume that prosecutors will always make correct Brady decisions or that guidance regarding specific Brady questions would not assist prosecutors. But showing merely that additional training would have been helpful in making difficult decisions does not establish municipal liability. “[P]rov[ing] that an injury or accident could have been avoided if an [employee] had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct” will not suffice.
3
The District Court and the Court of Appeals panel erroneously believed that Thompson had proved deliberate indifference by showing the “obviousness” of a need for additional training. They based this conclusion on Connick’s awareness that (1) prosecutors would confront Brady issues while at the district attorney’s office; (2) inexperienced prosecutors were expected to understand Brady’s requirements; (3) Brady has gray areas that make for difficult choices; and (4) erroneous decisions regarding Brady evidence would result in constitutional violations. This is insufficient.
It does not follow that, because Brady has gray areas and some Brady decisions are difficult, prosecutors will so obviously make wrong decisions that failing to train them amounts to “a decision by the city itself to violate the Constitution.” To prove deliberate indifference, Thompson needed to show that Connick was on notice that, absent additional specified training, it was “highly predictable” that the prosecutors in his office would be confounded by those gray areas and make incorrect Brady decisions as a result. In fact, Thompson had to show that it was so predictable that failing to train the prosecutors amounted to conscious disregard for defendants’ Brady rights. He did not do so.
III
We conclude that this case does not fall within the narrow range of “single-incident” liability. The District Court should have granted Connick judgment as a matter of law on the failure-to-train claim because Thompson did not prove a pattern of similar violations that would “establish that the ‘policy of inaction’ [was] the functional equivalent of a decision by the city itself to violate the Constitution.” The judgment of the United States Court of Appeals for the Fifth Circuit is reversed.
Justice SCALIA, with whom Justice ALITO joins, concurring.
[T]o recover from a municipality under 42 U.S.C. § 1983, a plaintiff must satisfy a “rigorous” standard of causation; he must “demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Thompson cannot meet that standard. The withholding of evidence in his case was almost certainly caused not by a failure to give prosecutors specific training, but by miscreant prosecutor Gerry Deegan’s willful suppression of evidence he believed to be exculpatory, in an effort to railroad Thompson. According to Deegan’s colleague Michael Riehlmann, in 1994 Deegan confessed to him—in the same conversation in which Deegan revealed he had only a few months to live—that he had “suppressed blood evidence in the armed robbery trial of John Thompson that in some way exculpated the defendant.” I have no reason to disbelieve that account, particularly since Riehlmann’s testimony hardly paints a flattering picture of himself: Riehlmann kept silent about Deegan’s misconduct for another five years, as a result of which he incurred professional sanctions. And if Riehlmann’s story is true, then the “moving force” behind the suppression of evidence was Deegan, not a failure of continuing legal education.
By now the reader has doubtless guessed the best-kept secret of this case: There was probably no Brady violation at all—except for Deegan’s (which, since it was a bad-faith, knowing violation, could not possibly be attributed to lack of training). The dissent surely knows this, which is why it leans heavily on the fact that Connick conceded that Brady was violated. I can honor that concession in my analysis of the case because even if it extends beyond Deegan’s deliberate actions, it remains irrelevant to Connick’s training obligations. For any Brady violation apart from Deegan’s was surely on the very frontier of our Brady jurisprudence; Connick could not possibly have been on notice decades ago that he was required to instruct his prosecutors to respect a right to untested evidence that we had not (and still have not) recognized. As a consequence, even if I accepted the dissent’s conclusion that failure-to-train liability could be premised on a single Brady error, I could not agree that the lack of an accurate training regimen caused the violation Connick has conceded.
Justice GINSBURG, with whom Justice BREYER, Justice SOTOMAYOR, and Justice KAGAN join, dissenting.
In Brady v. Maryland, this Court held that due process requires the prosecution to turn over evidence favorable to the accused and material to his guilt or punishment. That obligation, the parties have stipulated, was dishonored in this case; consequently, John Thompson spent 18 years in prison, 14 of them isolated on death row, before the truth came to light: He was innocent of the charge of attempted armed robbery, and his subsequent trial on a murder charge, by prosecutorial design, was fundamentally unfair.
The Court holds that the Orleans Parish District Attorney’s Office (District Attorney’s Office or Office) cannot be held liable, in a civil rights action under 42 U.S.C. § 1983, for the grave injustice Thompson suffered. That is so, the Court tells us, because Thompson has shown only an aberrant Brady violation, not a routine practice of giving short shrift to Brady’s requirements. The evidence presented to the jury that awarded compensation to Thompson, however, points distinctly away from the Court’s assessment. As the trial record in the § 1983 action reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical.
From the top down, the evidence showed, members of the District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office.
What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Office bears responsibility under § 1983.
I dissent from the Court’s judgment mindful that Brady violations, as this case illustrates, are not easily detected. But for a chance discovery made by a defense team investigator weeks before Thompson’s scheduled execution, the evidence that led to his exoneration might have remained under wraps. The prosecutorial concealment Thompson encountered, however, is bound to be repeated unless municipal agencies bear responsibility—made tangible by § 1983 liability—for adequately conveying what Brady requires and for monitoring staff compliance. Failure to train, this Court has said, can give rise to municipal liability under § 1983 “where the failure … amounts to deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.” That standard is well met in this case.
Thompson discovered the prosecutors’ misconduct through a serendipitous series of events. In 1994, nine years after Thompson’s convictions, Deegan, the assistant prosecutor in the armed robbery trial, learned he was terminally ill. Soon thereafter, Deegan confessed to his friend Michael Riehlmann that he had suppressed blood evidence in the armed robbery case. Deegan did not heed Riehlmann’s counsel to reveal what he had done. For five years, Riehlmann, himself a former Orleans Parish prosecutor, kept Deegan’s confession to himself.
On April 16, 1999, the State of Louisiana scheduled Thompson’s execution. In an eleventh-hour effort to save his life, Thompson’s attorneys hired a private investigator. Deep in the crime lab archives, the investigator unearthed a microfiche copy of the lab report identifying the robber’s blood type. The copy showed that the report had been addressed to Whittaker. Thompson’s attorneys contacted Whittaker, who informed Riehlmann that the lab report had been found. Riehlmann thereupon told Whittaker that Deegan “had failed to turn over stuff that might have been exculpatory.” Riehlmann prepared an affidavit describing Deegan’s disclosure “that he had intentionally suppressed blood evidence in the armed robbery trial of John Thompson.”
Thompson’s lawyers presented to the trial court the crime lab report showing that the robber’s blood type was B, and a report identifying Thompson’s blood type as O. This evidence proved Thompson innocent of the robbery. The court immediately stayed Thompson’s execution and commenced proceedings to assess the newly discovered evidence.
Connick sought an abbreviated hearing. A full hearing was unnecessary, he urged, because the Office had confessed error and had moved to dismiss the armed robbery charges. The court insisted on a public hearing. Given “the history of this case,” the court said, it “was not willing to accept the representations that [Connick] and [his] office made [in their motion to dismiss].” After a full day’s hearing, the court vacated Thompson’s attempted armed robbery conviction and dismissed the charges. Before doing so, the court admonished:
“[A]ll day long there have been a number of young Assistant D.A.’s … sitting in this courtroom watching this, and I hope they take home … and take to heart the message that this kind of conduct cannot go on in this Parish if this Criminal Justice System is going to work.”
The District Attorney’s Office then initiated grand jury proceedings against the prosecutors who had withheld the lab report. Connick terminated the grand jury after just one day. He maintained that the lab report would not be Brady material if prosecutors did not know Thompson’s blood type. And he told the investigating prosecutor that the grand jury “w[ould] make [his] job more difficult.” In protest, that prosecutor tendered his resignation.
Thereafter, the Louisiana Court of Appeal reversed Thompson’s murder conviction. The unlawfully procured robbery conviction, the court held, had violated Thompson’s right to testify and thus fully present his defense in the murder trial. The merits of several Brady claims arising out of the murder trial, the court observed, had therefore become “moot.”
Undeterred by his assistants’ disregard of Thompson’s rights, Connick retried him for the Liuzza murder. Thompson’s defense was bolstered by evidence earlier unavailable to him: ten exhibits the prosecution had not disclosed when Thompson was first tried. The newly produced items included police reports describing the assailant in the murder case as having “close cut” hair, the police report recounting Perkins’ meetings with the Liuzza family, audio recordings of those meetings, and a 35-page supplemental police report. After deliberating for only 35 minutes, the jury found Thompson not guilty.
On May 9, 2003, having served more than 18 years in prison for crimes he did not commit, Thompson was released.
On July 16, 2003, Thompson commenced a civil action under 42 U.S.C. § 1983 alleging that Connick, other officials of the Orleans Parish District Attorney’s Office, and the Office itself, had violated his constitutional rights by wrongfully withholding Brady evidence. Thompson sought to hold Connick and the District Attorney’s Office liable for failure adequately to train prosecutors concerning their Brady obligations. Such liability attaches, I agree with the Court, only when the failure “amount[s] to ‘deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.’” I disagree, however, with the Court’s conclusion that Thompson failed to prove deliberate indifference.
Having weighed all the evidence, the jury in the § 1983 case found for Thompson, concluding that the District Attorney’s Office had been deliberately indifferent to Thompson’s Brady rights and to the need for training and supervision to safeguard those rights. “Viewing the evidence in the light most favorable to [Thompson], as appropriate in light of the verdic[t] rendered by the jury,” I see no cause to upset the District Court’s determination, affirmed by the Fifth Circuit, that “ample evidence … adduced at trial” supported the jury’s verdict.
* * *
In our next chapter, we return to substantive criminal procedure law, examining the right to counsel provided by the Sixth Amendment. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/04%3A_The_Exclusionary_Rule/4.05%3A_Chapter_35_-_The_Basics_of_Suppression_Hearings_and_Money_Damages.txt |
THE RIGHT TO COUNSEL
Introduction to the Right to Counsel and Ineffective Assistance
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.” For more than a century after the ratification of the Amendment, this right allowed criminal defendants to hire their own lawyers but did not require the government to provide counsel to indigent defendants who could not afford to hire counsel. In 1932, the Court held that state court indigent defendants must be provided counsel in death penalty cases. See Powell v. Alabama, 287 U.S. 45 (1932) (the “Scottsboro Boys” case). Although the Court soon thereafter required federal courts to provide counsel even in non-capital cases, see Johnson v. Zerbst, 304 U.S. 458 (1938), the Court held in 1942 that for ordinary felony cases, state courts could decide for themselves whether to appoint counsel to indigent defendants. See Betts v. Brady, 316 U.S. 455, 473 (1942) (“we cannot say that the [Fourteenth A]mendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel”).
In 1963, the Court reversed Betts v. Brady in the landmark case of Gideon v. Wainwright. The story of Clarence Earl Gideon inspired one of the best known works of legal journalism—Gideon’s Trumpet (1964), by Anthony Lewis—as well as a movie with the same title starring Henry Fonda. Gideon asked for counsel when charged with a Florida crime, and the state judge refused to appoint him a lawyer. After his conviction, he appealed unsuccessfully in Florida courts. He then sent a handwritten note to the Supreme Court, which agreed to take the case.
Supreme Court of the United States
Clarence Earl Gideon v. Louie L. Wainwright
Decided March 18, 1963 – 372 U.S. 335
Mr. Justice BLACK delivered the opinion of the Court.
Petitioner was charged in a Florida state court with having broken and entered a poolroom with intent to commit a misdemeanor. This offense is a felony under Florida law. Appearing in court without funds and without a lawyer, petitioner asked the court to appoint counsel for him, whereupon the following colloquy took place:
“The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.
“The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel.”
Put to trial before a jury, Gideon conducted his defense about as well as could be expected from a layman. He made an opening statement to the jury, cross-examined the State’s witnesses, presented witnesses in his own defense, declined to testify himself, and made a short argument “emphasizing his innocence to the charge contained in the Information filed in this case.” The jury returned a verdict of guilty, and petitioner was sentenced to serve five years in the state prison. Later, petitioner filed in the Florida Supreme Court this habeas corpus petition attacking his conviction and sentence on the ground that the trial court’s refusal to appoint counsel for him denied him rights “guaranteed by the Constitution and the Bill of Rights by the United States Government.” Treating the petition for habeas corpus as properly before it, the State Supreme Court, “upon consideration thereof” but without an opinion, denied all relief. [T]he problem of a defendant’s federal constitutional right to counsel in a state court has been a continuing source of controversy and litigation in both state and federal courts. To give this problem another review here, we granted certiorari. Since Gideon was proceeding in forma pauperis, we appointed counsel to represent him and requested both sides to discuss in their briefs and oral arguments the following: “Should this Court’s holding in Betts v. Brady be reconsidered?”
I
The facts upon which Betts claimed that he had been unconstitutionally denied the right to have counsel appointed to assist him are strikingly like the facts upon which Gideon here bases his federal constitutional claim. Betts was indicted for robbery in a Maryland state court. On arraignment, he told the trial judge of his lack of funds to hire a lawyer and asked the court to appoint one for him. Betts was advised that it was not the practice in that county to appoint counsel for indigent defendants except in murder and rape cases. He then pleaded not guilty, had witnesses summoned, cross-examined the State’s witnesses, examined his own, and chose not to testify himself. He was found guilty by the judge, sitting without a jury, and sentenced to eight years in prison. Like Gideon, Betts sought release by habeas corpus, alleging that he had been denied the right to assistance of counsel in violation of the Fourteenth Amendment. Betts was denied any relief, and on review this Court affirmed. It was held that a refusal to appoint counsel for an indigent defendant charged with a felony did not necessarily violate the Due Process Clause of the Fourteenth Amendment, which for reasons given the Court deemed to be the only applicable federal constitutional provision.
Treating due process as “a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights,” the Court held that refusal to appoint counsel under the particular facts and circumstances in the Betts case was not so “offensive to the common and fundamental ideas of fairness” as to amount to a denial of due process. Since the facts and circumstances of the two cases are so nearly indistinguishable, we think the Betts v. Brady holding if left standing would require us to reject Gideon’s claim that the Constitution guarantees him the assistance of counsel. Upon full reconsideration we conclude that Betts v. Brady should be overruled.
II
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” We have construed this to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived. Betts argued that this right is extended to indigent defendants in state courts by the Fourteenth Amendment. In response the Court stated that, while the Sixth Amendment laid down “no rule for the conduct of the states, the question recurs whether the constraint laid by the amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the states by the Fourteenth Amendment.” [T]he Court [in Betts] concluded that “appointment of counsel is not a fundamental right, essential to a fair trial.” It was for this reason the Betts Court refused to accept the contention that the Sixth Amendment’s guarantee of counsel for indigent federal defendants was extended to or, in the words of that Court, “made obligatory upon the states by the Fourteenth Amendment.” Plainly, had the Court concluded that appointment of counsel for an indigent criminal defendant was “a fundamental right, essential to a fair trial,” it would have held that the Fourteenth Amendment requires appointment of counsel in a state court, just as the Sixth Amendment requires in a federal court.
We think the Court in Betts had ample precedent for acknowledging that those guarantees of the Bill of Rights which are fundamental safeguards of liberty immune from federal abridgment are equally protected against state invasion by the Due Process Clause of the Fourteenth Amendment. In many cases [], this Court has looked to the fundamental nature of original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory on the States. Explicitly recognized to be of this “fundamental nature” and therefore made immune from state invasion by the Fourteenth, or some part of it, are the First Amendment’s freedoms of speech, press, religion, assembly, association, and petition for redress of grievances. For the same reason, though not always in precisely the same terminology, the Court has made obligatory on the States the Fifth Amendment’s command that private property shall not be taken for public use without just compensation, the Fourth Amendment’s prohibition of unreasonable searches and seizures, and the Eighth’s ban on cruel and unusual punishment.
We accept Betts v. Brady’s assumption, based as it was on our prior cases, that a provision of the Bill of Rights which is “fundamental and essential to a fair trial” is made obligatory upon the States by the Fourteenth Amendment. We think the Court in Betts was wrong, however, in concluding that the Sixth Amendment’s guarantee of counsel is not one of these fundamental rights. Ten years before Betts v. Brady, this Court, after full consideration of all the historical data examined in Betts, had unequivocally declared that “the right to the aid of counsel is of this fundamental character.”
The fact is that in deciding as it did—that “appointment of counsel is not a fundamental right, essential to a fair trial”—the Court in Betts v. Brady made an abrupt break with its own well-considered precedents. In returning to these old precedents, sounder we believe than the new, we but restore constitutional principles established to achieve a fair system of justice. Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide-spread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. A defendant’s need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama:
“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
The Court in Betts v. Brady departed from the sound wisdom upon which the Court’s holding in Powell v. Alabama rested. Florida, supported by two other States, has asked that Betts v. Brady be left intact. Twenty-two States, as friends of the Court, argue that Betts was “an anachronism when handed down” and that it should now be overruled. We agree.
The judgment is reversed and the cause is remanded to the Supreme Court of Florida for further action not inconsistent with this opinion.
Notes, Comments, and Questions
After the Court decided Gideon v. Wainwright, the state of Florida retried Gideon. He was represented by counsel at his second trial and was acquitted.
In Argersinger v. Hamlin, 407 U.S. 25 (1972), the Court extended the rule of Gideon to all cases in which a defendant faces possible imprisonment, rejecting an argument it should be limited to cases in which a substantial prison sentence was possible. “The requirement of counsel may well be necessary for a fair trial even in a petty offense prosecution. We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more.” Id. at 33.1
Students should note that because the Assistance of Counsel Clause applies only to “criminal prosecutions,” the holding of Gideon does not provide a right to appointed counsel in all serious cases, only criminal cases. For example, a person at risk of deportation in immigration court has no right to counsel under Gideon, nor does a housing court litigant at risk of eviction, nor does a civil defendant sued for millions of dollars.
Students should also note that the right to trial by jury exists only if the maximum potential sentence exceeds six months. If the maximum is exactly six months or less, then the prosecutor can have a bench trial even if defendant objects. See Duncan v. Louisiana, 391 U.S. 145 (1968); see also Baldwin v. New York, 399 U.S. 66 (1970). If the statutory maximum is, say, eight months, then prosecutor can say she won’t seek a sentence in excess of six months to avoid dealing with a jury. If the defendant is charged with two counts, and each count has a maximum sentence of four months, that does not exceed six months for purposes of this rule. The test is whether any offense has a maximum possible sentence above six months. (Also, in actual practice, someone convicted on two counts, each with a maximum sentence of four months, usually serves four months rather than eight months. Sentences for multiple counts usually run concurrently instead of consecutively, absent an unusual statute.)
Because the “assistance of counsel” would have little value if the defendant’s lawyer literally arrived only for the trial and provided help at no other time, the Court has held that defendants have the right to counsel not only at trial but also at other “critical stages” of the prosecution. These “critical stages” include: post-indictment line-ups (see United States v. Wade, chapter 38), preliminary hearings (see Coleman v. Alabama, 399 U.S. 1 (1970)), post-indictment interrogations (see Massiah, chapter 29), and arraignments (see Hamilton v. Alabama, 368 U.S. 52 (1961)). Recall also Rothgery v. Gillespie County (discussed in Chapter 29), in which the Court held that the right to counsel attaches at a defendant’s first presentation before judicial officer, even if no lawyer is there for the prosecution.
By contrast, a defendant has no right to government-funded counsel after the conclusion of initial (direct) appeals. Accordingly, for certiorari petitions, habeas corpus petitions, and similar efforts, the defendant must pay a lawyer, find pro bono counsel, or proceed pro se.
Since the Court decided Gideon, states have created systems for the provision of counsel to indigent criminal defendants. The quality of these systems varies tremendously from state to state. Common issues confronted by states include the quality of appointed counsel—especially in complicated cases, and most especially in capital cases—as well as funding to pay lawyers, experts, and other costs. States also diverge in their definitions of who qualifies as sufficiently indigent for appointed counsel. For a review of the state of indigent defense in the states, see the articles collected in the Summer 2010 symposium issue of the Missouri Law Review, entitled “Broke and Broken: Can We Fix Our State Indigent Defense System?” Topics include ethical duties lawyers owe to indigent clients, state constitutional challenges to inadequate indigent defense systems, and ethical issues provided by excessive caseloads. One recent example of a state system in crisis occurred in 2016, when the lead public defender in Missouri attempted to assign a criminal case to the state’s governor, claiming that grievous underfunding justified the unusual move.2
Ineffective Assistance of Counsel
The Sixth Amendment right to counsel has never been interpreted to mean that all defendants have the right to perfect, or even to very good, counsel. However, if the quality of counsel falls below the minimum standards of the legal profession, a convicted defendant may sometimes have a conviction set aside on the basis of “ineffective assistance of counsel.” In Strickland v. Washington, the Court set forth the standard for ineffective assistance claims.
Supreme Court of the United States
Charles E. Strickland v. David Leroy Washington
Decided May 14, 1984 – 466 U.S. 668
Justice O’CONNOR delivered the opinion of the Court.
This case requires us to consider the proper standards for judging a criminal defendant’s contention that the Constitution requires a conviction or death sentence to be set aside because counsel’s assistance at the trial or sentencing was ineffective.
A
During a 10-day period in September 1976, respondent planned and committed three groups of crimes, which included three brutal stabbing murders, torture, kidnaping, severe assaults, attempted murders, attempted extortion, and theft. After his two accomplices were arrested, respondent surrendered to police and voluntarily gave a lengthy statement confessing to the third of the criminal episodes. The State of Florida indicted respondent for kidnaping and murder and appointed an experienced criminal lawyer to represent him.
Counsel actively pursued pretrial motions and discovery. He cut his efforts short, however, and he experienced a sense of hopelessness about the case, when he learned that, against his specific advice, respondent had also confessed to the first two murders. By the date set for trial, respondent was subject to indictment for three counts of first-degree murder and multiple counts of robbery, kidnaping for ransom, breaking and entering and assault, attempted murder, and conspiracy to commit robbery. Respondent waived his right to a jury trial, again acting against counsel’s advice, and pleaded guilty to all charges, including the three capital murder charges.
In the plea colloquy, respondent told the trial judge that, although he had committed a string of burglaries, he had no significant prior criminal record and that at the time of his criminal spree he was under extreme stress caused by his inability to support his family. He also stated, however, that he accepted responsibility for the crimes. The trial judge told respondent that he had “a great deal of respect for people who are willing to step forward and admit their responsibility” but that he was making no statement at all about his likely sentencing decision.
Counsel advised respondent to invoke his right under Florida law to an advisory jury at his capital sentencing hearing. Respondent rejected the advice and waived the right. He chose instead to be sentenced by the trial judge without a jury recommendation.
In preparing for the sentencing hearing, counsel spoke with respondent about his background. He also spoke on the telephone with respondent’s wife and mother, though he did not follow up on the one unsuccessful effort to meet with them. He did not otherwise seek out character witnesses for respondent. Nor did he request a psychiatric examination, since his conversations with his client gave no indication that respondent had psychological problems.
Counsel decided not to present and hence not to look further for evidence concerning respondent’s character and emotional state. That decision reflected trial counsel’s sense of hopelessness about overcoming the evidentiary effect of respondent’s confessions to the gruesome crimes. It also reflected the judgment that it was advisable to rely on the plea colloquy for evidence about respondent’s background and about his claim of emotional stress: the plea colloquy communicated sufficient information about these subjects, and by forgoing the opportunity to present new evidence on these subjects, counsel prevented the State from cross-examining respondent on his claim and from putting on psychiatric evidence of its own.
Counsel also excluded from the sentencing hearing other evidence he thought was potentially damaging. He successfully moved to exclude respondent’s “rap sheet.” Because he judged that a presentence report might prove more detrimental than helpful, as it would have included respondent’s criminal history and thereby would have undermined the claim of no significant history of criminal activity, he did not request that one be prepared.
At the sentencing hearing, counsel’s strategy was based primarily on the trial judge’s remarks at the plea colloquy as well as on his reputation as a sentencing judge who thought it important for a convicted defendant to own up to his crime. Counsel argued that respondent’s remorse and acceptance of responsibility justified sparing him from the death penalty. Counsel also argued that respondent had no history of criminal activity and that respondent committed the crimes under extreme mental or emotional disturbance, thus coming within the statutory list of mitigating circumstances. He further argued that respondent should be spared death because he had surrendered, confessed, and offered to testify against a codefendant and because respondent was fundamentally a good person who had briefly gone badly wrong in extremely stressful circumstances. The State put on evidence and witnesses largely for the purpose of describing the details of the crimes. Counsel did not cross-examine the medical experts who testified about the manner of death of respondent’s victims.
The trial judge found several aggravating circumstances with respect to each of the three murders. He found that all three murders were especially heinous, atrocious, and cruel, all involving repeated stabbings. All three murders were committed in the course of at least one other dangerous and violent felony, and since all involved robbery, the murders were for pecuniary gain. All three murders were committed to avoid arrest for the accompanying crimes and to hinder law enforcement. In the course of one of the murders, respondent knowingly subjected numerous persons to a grave risk of death by deliberately stabbing and shooting the murder victim’s sisters-in-law, who sustained severe—in one case, ultimately fatal—injuries.
With respect to mitigating circumstances, the trial judge made the same findings for all three capital murders. First, although there was no admitted evidence of prior convictions, respondent had stated that he had engaged in a course of stealing. In any case, even if respondent had no significant history of criminal activity, the aggravating circumstances “would still clearly far outweigh” that mitigating factor. Second, the judge found that, during all three crimes, respondent was not suffering from extreme mental or emotional disturbance and could appreciate the criminality of his acts. Third, none of the victims was a participant in, or consented to, respondent’s conduct. Fourth, respondent’s participation in the crimes was neither minor nor the result of duress or domination by an accomplice. Finally, respondent’s age (26) could not be considered a factor in mitigation, especially when viewed in light of respondent’s planning of the crimes and disposition of the proceeds of the various accompanying thefts.
In short, the trial judge found numerous aggravating circumstances and no (or a single comparatively insignificant) mitigating circumstance. With respect to each of the three convictions for capital murder, the trial judge concluded: “A careful consideration of all matters presented to the court impels the conclusion that there are insufficient mitigating circumstances … to outweigh the aggravating circumstances.” He therefore sentenced respondent to death on each of the three counts of murder and to prison terms for the other crimes. The Florida Supreme Court upheld the convictions and sentences on direct appeal.
B
Respondent subsequently sought collateral relief in state court on numerous grounds, among them that counsel had rendered ineffective assistance at the sentencing proceeding. Respondent challenged counsel’s assistance in six respects. He asserted that counsel was ineffective because he failed to move for a continuance to prepare for sentencing, to request a psychiatric report, to investigate and present character witnesses, to seek a presentence investigation report, to present meaningful arguments to the sentencing judge, and to investigate the medical examiner’s reports or cross-examine the medical experts. In support of the claim, respondent submitted 14 affidavits from friends, neighbors, and relatives stating that they would have testified if asked to do so. He also submitted one psychiatric report and one psychological report stating that respondent, though not under the influence of extreme mental or emotional disturbance, was “chronically frustrated and depressed because of his economic dilemma” at the time of his crimes.
The trial court denied relief without an evidentiary hearing, finding that the record evidence conclusively showed that the ineffectiveness claim was meritless. Four of the assertedly prejudicial errors required little discussion. First, there were no grounds to request a continuance, so there was no error in not requesting one when respondent pleaded guilty. Second, failure to request a presentence investigation was not a serious error because the trial judge had discretion not to grant such a request and because any presentence investigation would have resulted in admission of respondent’s “rap sheet” and thus would have undermined his assertion of no significant history of criminal activity. Third, the argument and memorandum given to the sentencing judge were “admirable” in light of the overwhelming aggravating circumstances and absence of mitigating circumstances. Fourth, there was no error in failure to examine the medical examiner’s reports or to cross-examine the medical witnesses testifying on the manner of death of respondent’s victims, since respondent admitted that the victims died in the ways shown by the unchallenged medical evidence.
The trial court dealt at greater length with the two other bases for the ineffectiveness claim. The court pointed out that a psychiatric examination of respondent was conducted by state order soon after respondent’s initial arraignment. That report states that there was no indication of major mental illness at the time of the crimes. Moreover, both the reports submitted in the collateral proceeding state that, although respondent was “chronically frustrated and depressed because of his economic dilemma,” he was not under the influence of extreme mental or emotional disturbance. All three reports thus directly undermine the contention made at the sentencing hearing that respondent was suffering from extreme mental or emotional disturbance during his crime spree. Accordingly, counsel could reasonably decide not to seek psychiatric reports; indeed, by relying solely on the plea colloquy to support the emotional disturbance contention, counsel denied the State an opportunity to rebut his claim with psychiatric testimony. In any event, the aggravating circumstances were so overwhelming that no substantial prejudice resulted from the absence at sentencing of the psychiatric evidence offered in the collateral attack.
The court rejected the challenge to counsel’s failure to develop and to present character evidence for much the same reasons. The affidavits submitted in the collateral proceeding showed nothing more than that certain persons would have testified that respondent was basically a good person who was worried about his family’s financial problems. Respondent himself had already testified along those lines at the plea colloquy. Moreover, respondent’s admission of a course of stealing rebutted many of the factual allegations in the affidavits. For those reasons, and because the sentencing judge had stated that the death sentence would be appropriate even if respondent had no significant prior criminal history, no substantial prejudice resulted from the absence at sentencing of the character evidence offered in the collateral attack. The Florida Supreme Court affirmed the denial of relief.
C
Respondent next filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Florida. The court [] denied the petition for a writ of habeas corpus.
On appeal, a panel of the United States Court of Appeals for the Fifth Circuit affirmed in part, vacated in part, and remanded with instructions to apply to the particular facts the framework for analyzing ineffectiveness claims that it developed in its opinion. The panel decision was itself vacated when Unit B of the former Fifth Circuit, now the Eleventh Circuit, decided to rehear the case en banc. The full Court of Appeals developed its own framework for analyzing ineffective assistance claims and reversed the judgment of the District Court and remanded the case for new factfinding under the newly announced standards.
D
Petitioners, who are officials of the State of Florida, filed a petition for a writ of certiorari seeking review of the decision of the Court of Appeals. The petition presents a type of Sixth Amendment claim that this Court has not previously considered in any generality. The Court has considered Sixth Amendment claims based on actual or constructive denial of the assistance of counsel altogether, as well as claims based on state interference with the ability of counsel to render effective assistance to the accused. With the exception of Cuyler v. Sullivan, 446 U.S. 335 (1980), however, which involved a claim that counsel’s assistance was rendered ineffective by a conflict of interest, the Court has never directly and fully addressed a claim of “actual ineffectiveness” of counsel’s assistance in a case going to trial.
For these reasons, we granted certiorari to consider the standards by which to judge a contention that the Constitution requires that a criminal judgment be overturned because of the actual ineffective assistance of counsel. We address the merits of the constitutional issue.
II
In a long line of cases [] this Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
Thus, a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding. The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the “ample opportunity to meet the case of the prosecution” to which they are entitled.
Because of the vital importance of counsel’s assistance, this Court has held that, with certain exceptions, a person accused of a federal or state crime has the right to have counsel appointed if retained counsel cannot be obtained. That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.
For that reason, the Court has recognized that “the right to counsel is the right to the effective assistance of counsel.” Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense. The Court has not elaborated on the meaning of the constitutional requirement of effective assistance in the latter class of cases—that is, those presenting claims of “actual ineffectiveness.” In giving meaning to the requirement, however, we must take its purpose—to ensure a fair trial—as the guide. The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
The same principle applies to a capital sentencing proceeding such as that provided by Florida law. We need not consider the role of counsel in an ordinary sentencing, which may involve informal proceedings and standardless discretion in the sentencer, and hence may require a different approach to the definition of constitutionally effective assistance. A capital sentencing proceeding like the one involved in this case, however, is sufficiently like a trial in its adversarial format and in the existence of standards for decision that counsel’s role in the proceeding is comparable to counsel’s role at trial—to ensure that the adversarial testing process works to produce a just result under the standards governing decision. For purposes of describing counsel’s duties, therefore, Florida’s capital sentencing proceeding need not be distinguished from an ordinary trial.
III
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
A
As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance. The Court indirectly recognized as much when it stated [] that a guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not “a reasonably competent attorney” and the advice was not “within the range of competence demanded of attorneys in criminal cases.” When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.
More specific guidelines are not appropriate. The Sixth Amendment refers simply to “counsel,” not specifying particular requirements of effective assistance. It relies instead on the legal profession’s maintenance of standards sufficient to justify the law’s presumption that counsel will fulfill the role in the adversary process that the Amendment envisions. The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.
Representation of a criminal defendant entails certain basic duties. Counsel’s function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. From counsel’s function as assistant to the defendant derive the overarching duty to advocate the defendant’s cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.
These basic duties neither exhaustively define the obligations of counsel nor form a checklist for judicial evaluation of attorney performance. In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d ed. 1980) (“The Defense Function”), are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. Indeed, the existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant’s cause. Moreover, the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.
The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel’s unsuccessful defense. Counsel’s performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.
Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
These standards require no special amplification in order to define counsel’s duty to investigate, the duty at issue in this case. As the Court of Appeals concluded, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.
The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel’s conversations with the defendant may be critical to a proper assessment of counsel’s investigation decisions, just as it may be critical to a proper assessment of counsel’s other litigation decisions.
B
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.
In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel’s assistance. Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost. Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent.
One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of prejudice. [P]rejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer’s performance.”
Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. The government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence. Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.
It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. Respondent suggests requiring a showing that the errors “impaired the presentation of the defense.” That standard, however, provides no workable principle. Since any error, if it is indeed an error, “impairs” the presentation of the defense, the proposed standard is inadequate because it provides no way of deciding what impairments are sufficiently serious to warrant setting aside the outcome of the proceeding.
On the other hand, we believe that a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case. This outcome-determinative standard has several strengths. It defines the relevant inquiry in a way familiar to courts, though the inquiry, as is inevitable, is anything but precise. The standard also reflects the profound importance of finality in criminal proceedings. Moreover, it comports with the widely used standard for assessing motions for new trial based on newly discovered evidence. Nevertheless, the standard is not quite appropriate.
Even when the specified attorney error results in the omission of certain evidence, the newly discovered evidence standard is not an apt source from which to draw a prejudice standard for ineffectiveness claims. The high standard for newly discovered evidence claims presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged. An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower. The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.
Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness. The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, “nullification,” and the like. A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncrasies of the particular decisionmaker, such as unusual propensities toward harshness or leniency. Although these factors may actually have entered into counsel’s selection of strategies and, to that limited extent, may thus affect the performance inquiry, they are irrelevant to the prejudice inquiry. Thus, evidence about the actual process of decision, if not part of the record of the proceeding under review, and evidence about, for example, a particular judge’s sentencing practices, should not be considered in the prejudice determination.
The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from counsel’s errors. When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer—including an appellate court, to the extent it independently reweighs the evidence—would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.
In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.
IV
A number of practical considerations are important for the application of the standards we have outlined. Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules. Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.
To the extent that this has already been the guiding inquiry in the lower courts, the standards articulated today do not require reconsideration of ineffectiveness claims rejected under different standards. In particular, the minor differences in the lower courts’ precise formulations of the performance standard are insignificant: the different formulations are mere variations of the overarching reasonableness standard. With regard to the prejudice inquiry, only the strict outcome-determinative test, among the standards articulated in the lower courts, imposes a heavier burden on defendants than the tests laid down today. The difference, however, should alter the merit of an ineffectiveness claim only in the rarest case.
Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.
The principles governing ineffectiveness claims should apply in federal collateral proceedings as they do on direct appeal or in motions for a new trial. As indicated by the “cause and prejudice” test for overcoming procedural waivers of claims of error, the presumption that a criminal judgment is final is at its strongest in collateral attacks on that judgment. An ineffectiveness claim, however, as our articulation of the standards that govern decision of such claims makes clear, is an attack on the fundamental fairness of the proceeding whose result is challenged. Since fundamental fairness is the central concern of the writ of habeas corpus, no special standards ought to apply to ineffectiveness claims made in habeas proceedings.
Finally, in a federal habeas challenge to a state criminal judgment, a state court conclusion that counsel rendered effective assistance is not a finding of fact binding on the federal court to the extent stated by 28 U.S.C. § 2254(d). Ineffectiveness is not a question of “basic, primary, or historical fac[t].” Rather, like the question whether multiple representation in a particular case gave rise to a conflict of interest, it is a mixed question of law and fact. Although state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of § 2254(d), and although district court findings are subject to the clearly erroneous standard of Federal Rule of Civil Procedure 52(a), both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.
V
Having articulated general standards for judging ineffectiveness claims, we think it useful to apply those standards to the facts of this case in order to illustrate the meaning of the general principles. The record makes it possible to do so. There are no conflicts between the state and federal courts over findings of fact, and the principles we have articulated are sufficiently close to the principles applied both in the Florida courts and in the District Court that it is clear that the factfinding was not affected by erroneous legal principles.
Application of the governing principles is not difficult in this case. The facts as described above, make clear that the conduct of respondent’s counsel at and before respondent’s sentencing proceeding cannot be found unreasonable. They also make clear that, even assuming the challenged conduct of counsel was unreasonable, respondent suffered insufficient prejudice to warrant setting aside his death sentence.
With respect to the performance component, the record shows that respondent’s counsel made a strategic choice to argue for the extreme emotional distress mitigating circumstance and to rely as fully as possible on respondent’s acceptance of responsibility for his crimes. Although counsel understandably felt hopeless about respondent’s prospects, nothing in the record indicates, as one possible reading of the District Court’s opinion suggests, that counsel’s sense of hopelessness distorted his professional judgment. Counsel’s strategy choice was well within the range of professionally reasonable judgments, and the decision not to seek more character or psychological evidence than was already in hand was likewise reasonable.
The trial judge’s views on the importance of owning up to one’s crimes were well known to counsel. The aggravating circumstances were utterly overwhelming. Trial counsel could reasonably surmise from his conversations with respondent that character and psychological evidence would be of little help. Respondent had already been able to mention at the plea colloquy the substance of what there was to know about his financial and emotional troubles. Restricting testimony on respondent’s character to what had come in at the plea colloquy ensured that contrary character and psychological evidence and respondent’s criminal history, which counsel had successfully moved to exclude, would not come in. On these facts, there can be little question, even without application of the presumption of adequate performance, that trial counsel’s defense, though unsuccessful, was the result of reasonable professional judgment.
With respect to the prejudice component, the lack of merit of respondent’s claim is even more stark. The evidence that respondent says his trial counsel should have offered at the sentencing hearing would barely have altered the sentencing profile presented to the sentencing judge. As the state courts and District Court found, at most this evidence shows that numerous people who knew respondent thought he was generally a good person and that a psychiatrist and a psychologist believed he was under considerable emotional stress that did not rise to the level of extreme disturbance. Given the overwhelming aggravating factors, there is no reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances and, hence, the sentence imposed. Indeed, admission of the evidence respondent now offers might even have been harmful to his case: his “rap sheet” would probably have been admitted into evidence, and the psychological reports would have directly contradicted respondent’s claim that the mitigating circumstance of extreme emotional disturbance applied to his case.
Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Here there is a double failure. More generally, respondent has made no showing that the justice of his sentence was rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsel’s assistance. Respondent’s sentencing proceeding was not fundamentally unfair.
We conclude, therefore, that the District Court properly declined to issue a writ of habeas corpus. The judgment of the Court of Appeals is accordingly [r]eversed.
Justice MARSHALL, dissenting.
The Sixth and Fourteenth Amendments guarantee a person accused of a crime the right to the aid of a lawyer in preparing and presenting his defense. It has long been settled that “the right to counsel is the right to the effective assistance of counsel.” The state and lower federal courts have developed standards for distinguishing effective from inadequate assistance. Today, for the first time, this Court attempts to synthesize and clarify those standards. For the most part, the majority’s efforts are unhelpful. Neither of its two principal holdings seems to me likely to improve the adjudication of Sixth Amendment claims. And, in its zeal to survey comprehensively this field of doctrine, the majority makes many other generalizations and suggestions that I find unacceptable. Most importantly, the majority fails to take adequate account of the fact that the locus of this case is a capital sentencing proceeding. Accordingly, I join neither the Court’s opinion nor its judgment.
The opinion of the Court revolves around two holdings. First, the majority ties the constitutional minima of attorney performance to a simple “standard of reasonableness.” Second, the majority holds that only an error of counsel that has sufficient impact on a trial to “undermine confidence in the outcome” is grounds for overturning a conviction. I disagree with both of these rulings.
My objection to the performance standard adopted by the Court is that it is so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts. To tell lawyers and the lower courts that counsel for a criminal defendant must behave “reasonably” and must act like “a reasonably competent attorney” is to tell them almost nothing. In essence, the majority has instructed judges called upon to assess claims of ineffective assistance of counsel to advert to their own intuitions regarding what constitutes “professional” representation, and has discouraged them from trying to develop more detailed standards governing the performance of defense counsel. In my view, the Court has thereby not only abdicated its own responsibility to interpret the Constitution, but also impaired the ability of the lower courts to exercise theirs.
I object to the prejudice standard adopted by the Court for two independent reasons. First, it is often very difficult to tell whether a defendant convicted after a trial in which he was ineffectively represented would have fared better if his lawyer had been competent. Seemingly impregnable cases can sometimes be dismantled by good defense counsel. On the basis of a cold record, it may be impossible for a reviewing court confidently to ascertain how the government’s evidence and arguments would have stood up against rebuttal and cross-examination by a shrewd, well-prepared lawyer. The difficulties of estimating prejudice after the fact are exacerbated by the possibility that evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel. In view of all these impediments to a fair evaluation of the probability that the outcome of a trial was affected by ineffectiveness of counsel, it seems to me senseless to impose on a defendant whose lawyer has been shown to have been incompetent the burden of demonstrating prejudice.
Second and more fundamentally, the assumption on which the Court’s holding rests is that the only purpose of the constitutional guarantee of effective assistance of counsel is to reduce the chance that innocent persons will be convicted. In my view, the guarantee also functions to ensure that convictions are obtained only through fundamentally fair procedures. The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney. I cannot agree. Every defendant is entitled to a trial in which his interests are vigorously and conscientiously advocated by an able lawyer. A proceeding in which the defendant does not receive meaningful assistance in meeting the forces of the State does not, in my opinion, constitute due process.
[Justice Marshall then argued that even under the standard set forth by the majority, Strickland’s claim should have prevailed.]
Notes, Comments, and Questions
The Strickland standard requires two showings from the defendant. First, the defendant must show that there was a deficiency in the attorney’s performance, and second, the defendant must how that that deficiency prejudiced the defense. In other words, the defendant must show that but for the attorney’s unprofessional errors, the outcome might well have been different.
Justice Marshall, on the other hand, focuses on the fairness of the process. He finds the requirement that a defendant prove prejudice, even after his attorney has been shown to be ineffective, is “senseless” because of the difficulties in making such a showing. Justice Marshall proposes the Sixth Amendment is violated when a defendant is represented by a manifestly ineffective attorney regardless of what other evidence of guilt the prosecution might possess.
Students should consider whether they find the majority or Justice Marshall more persuasive. Why? What are the problems, if any, with the majority’s standard (or its application of the standard to the facts before it)? What are the problems, if any, with Justice Marshall’s proposed alternative?
While Strickland articulated a two-pronged test applicable when a defendant points to a specific error made by counsel, prejudice is presumed (that is, the defendant needs to prove it) when the defendant’s ineffective assistance claim rests on counsel’s failure “to subject the prosecution’s case to meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648 (1984). The Court in Cronic, articulated that surrounding circumstances (rather than specific error) can give rise to a presumption of prejudice when counsel’s overall deficiency is akin to having no counsel at all. Some circuit courts have expanded the Cronic standard to encompass counsel that sleep during the entirety of trial and counsel that ask no questions on cross examination.
In our next chapter, we continue our examination of ineffective assistance claims. We also review when a criminal defendant may represent himself and when a Court may deny that option to a defendant. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/05%3A_The_Right_to_Counsel/5.01%3A_Chapter_36_-_Introduction_to_the_Right_to_Counsel_and_Ineffective_Assistance.txt |
THE RIGHT TO COUNSEL
Self-Representation and More on Ineffective Assistance
In this chapter we continue our study of what constitutes effective (and ineffective) assistance of counsel in criminal cases. We also explore when a criminal defendant has the right to represent herself, even if a judge believes that she would be better served by a lawyer.
We begin with the Court’s application of Strickland v. Washington (Chapter 36) to cases in which no trial occurs because the defendant enters a plea of guilty.
Supreme Court of the United States
Missouri v. Galin E. Frye
Decided March 21, 2012 – 566 U.S. 134
Justice KENNEDY delivered the opinion of the Court.
The Sixth Amendment, applicable to the States by the terms of the Fourteenth Amendment, provides that the accused shall have the assistance of counsel in all criminal prosecutions. The right to counsel is the right to effective assistance of counsel. This case arises in the context of claimed ineffective assistance that led to the lapse of a prosecution offer of a plea bargain, a proposal that offered terms more lenient than the terms of the guilty plea entered later. The initial question is whether the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected. If there is a right to effective assistance with respect to those offers, a further question is what a defendant must demonstrate in order to show that prejudice resulted from counsel’s deficient performance.
I
In August 2007, respondent Galin Frye was charged with driving with a revoked license. Frye had been convicted for that offense on three other occasions, so the State of Missouri charged him with a class D felony, which carries a maximum term of imprisonment of four years.
On November 15, the prosecutor sent a letter to Frye’s counsel offering a choice of two plea bargains. The prosecutor first offered to recommend a 3-year sentence if there was a guilty plea to the felony charge, without a recommendation regarding probation but with a recommendation that Frye serve 10 days in jail as so-called “shock” time. The second offer was to reduce the charge to a misdemeanor and, if Frye pleaded guilty to it, to recommend a 90-day sentence. The misdemeanor charge of driving with a revoked license carries a maximum term of imprisonment of one year. The letter stated both offers would expire on December 28. Frye’s attorney did not advise Frye that the offers had been made. The offers expired.
Frye’s preliminary hearing was scheduled for January 4, 2008. On December 30, 2007, less than a week before the hearing, Frye was again arrested for driving with a revoked license. At the January 4 hearing, Frye waived his right to a preliminary hearing on the charge arising from the August 2007 arrest. He pleaded not guilty at a subsequent arraignment but then changed his plea to guilty. There was no underlying plea agreement. The state trial court accepted Frye’s guilty plea. The prosecutor recommended a 3-year sentence, made no recommendation regarding probation, and requested 10 days shock time in jail. The trial judge sentenced Frye to three years in prison.
Frye filed for postconviction relief in state court. He alleged his counsel’s failure to inform him of the prosecution’s plea offer denied him the effective assistance of counsel. At an evidentiary hearing, Frye testified he would have entered a guilty plea to the misdemeanor had he known about the offer.
A state court denied the postconviction motion, but the Missouri Court of Appeals reversed. To implement a remedy for the violation, the court deemed Frye’s guilty plea withdrawn and remanded to allow Frye either to insist on a trial or to plead guilty to any offense the prosecutor deemed it appropriate to charge. This Court granted certiorari.
A
It is well settled that the right to the effective assistance of counsel applies to certain steps before trial. The “Sixth Amendment guarantees a defendant the right to have counsel present at all ‘critical’ stages of the criminal proceedings.” Critical stages include arraignments, postindictment interrogations, postindictment lineups, and the entry of a guilty plea.
With respect to the right to effective counsel in plea negotiations, a proper beginning point is to discuss two cases from this Court considering the role of counsel in advising a client about a plea offer and an ensuing guilty plea: Hill v. Lockhart, 474 U.S. 52 (1985) and Padilla v. Kentucky, 559 U.S. 356 (2010).
Hill established that claims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth in Strickland. As noted above, in Frye’s case, the Missouri Court of Appeals, applying the two part test of Strickland, determined first that defense counsel had been ineffective and second that there was resulting prejudice.
In Hill, the decision turned on the second part of the Strickland test. There, a defendant who had entered a guilty plea claimed his counsel had misinformed him of the amount of time he would have to serve before he became eligible for parole. But the defendant had not alleged that, even if adequate advice and assistance had been given, he would have elected to plead not guilty and proceed to trial. Thus, the Court found that no prejudice from the inadequate advice had been shown or alleged.
In Padilla, the Court again discussed the duties of counsel in advising a client with respect to a plea offer that leads to a guilty plea. Padilla held that a guilty plea, based on a plea offer, should be set aside because counsel misinformed the defendant of the immigration consequences of the conviction. The Court made clear that “the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” It also rejected the argument made by petitioner in this case that a knowing and voluntary plea supersedes errors by defense counsel.
The State is correct to point out that Hill and Padilla concerned whether there was ineffective assistance leading to acceptance of a plea offer, a process involving a formal court appearance with the defendant and all counsel present. Before a guilty plea is entered the defendant’s understanding of the plea and its consequences can be established on the record. This affords the State substantial protection against later claims that the plea was the result of inadequate advice. At the plea entry proceedings the trial court and all counsel have the opportunity to establish on the record that the defendant understands the process that led to any offer, the advantages and disadvantages of accepting it, and the sentencing consequences or possibilities that will ensue once a conviction is entered based upon the plea. Hill and Padilla both illustrate that, nevertheless, there may be instances when claims of ineffective assistance can arise after the conviction is entered. Still, the State, and the trial court itself, have had a substantial opportunity to guard against this contingency by establishing at the plea entry proceeding that the defendant has been given proper advice or, if the advice received appears to have been inadequate, to remedy that deficiency before the plea is accepted and the conviction entered.
When a plea offer has lapsed or been rejected, however, no formal court proceedings are involved. This underscores that the plea-bargaining process is often in flux, with no clear standards or timelines and with no judicial supervision of the discussions between prosecution and defense. Indeed, discussions between client and defense counsel are privileged. So the prosecution has little or no notice if something may be amiss and perhaps no capacity to intervene in any event. And, as noted, the State insists there is no right to receive a plea offer. For all these reasons, the State contends, it is unfair to subject it to the consequences of defense counsel’s inadequacies, especially when the opportunities for a full and fair trial, or, as here, for a later guilty plea albeit on less favorable terms, are preserved.
The State’s contentions are neither illogical nor without some persuasive force, yet they do not suffice to overcome a simple reality. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent … horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” In today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.
To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable prosecutorial resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. In order that these benefits can be realized, however, criminal defendants require effective counsel during plea negotiations. “Anything less … might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.’”
B
Here the question is whether defense counsel has the duty to communicate the terms of a formal offer to accept a plea on terms and conditions that may result in a lesser sentence, a conviction on lesser charges, or both.
This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date. When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.
Though the standard for counsel’s performance is not determined solely by reference to codified standards of professional practice, these standards can be important guides. The American Bar Association recommends defense counsel “promptly communicate and explain to the defendant all plea offers made by the prosecuting attorney” and this standard has been adopted by numerous state and federal courts over the last 30 years. The standard for prompt communication and consultation is also set out in state bar professional standards for attorneys.
The prosecution and the trial courts may adopt some measures to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction with resulting harsh consequences. First, the fact of a formal offer means that its terms and its processing can be documented so that what took place in the negotiation process becomes more clear if some later inquiry turns on the conduct of earlier pretrial negotiations. Second, States may elect to follow rules that all offers must be in writing, again to ensure against later misunderstandings or fabricated charges. Third, formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence.
Here defense counsel did not communicate the formal offers to the defendant. As a result of that deficient performance, the offers lapsed. Under Strickland, the question then becomes what, if any, prejudice resulted from the breach of duty.
C
To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.
This application of Strickland to the instances of an uncommunicated, lapsed plea does nothing to alter the standard laid out in Hill. In cases where a defendant complains that ineffective assistance led him to accept a plea offer as opposed to proceeding to trial, the defendant will have to show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill was correctly decided and applies in the context in which it arose. Hill does not, however, provide the sole means for demonstrating prejudice arising from the deficient performance of counsel during plea negotiations. Unlike the defendant in Hill, Frye argues that with effective assistance he would have accepted an earlier plea offer (limiting his sentence to one year in prison) as opposed to entering an open plea (exposing him to a maximum sentence of four years’ imprisonment). In a case, such as this, where a defendant pleads guilty to less favorable terms and claims that ineffective assistance of counsel caused him to miss out on a more favorable earlier plea offer, Strickland’s inquiry into whether “the result of the proceeding would have been different,” requires looking not at whether the defendant would have proceeded to trial absent ineffective assistance but whether he would have accepted the offer to plead pursuant to the terms earlier proposed.
In order to complete a showing of Strickland prejudice, defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented. This further showing is of particular importance because a defendant has no right to be offered a plea nor a federal right that the judge accept it. In at least some States, including Missouri, it appears the prosecution has some discretion to cancel a plea agreement to which the defendant has agreed. The Federal Rules, some state rules including in Missouri, and this Court’s precedents give trial courts some leeway to accept or reject plea agreements. It can be assumed that in most jurisdictions prosecutors and judges are familiar with the boundaries of acceptable plea bargains and sentences. So in most instances it should not be difficult to make an objective assessment as to whether or not a particular fact or intervening circumstance would suffice, in the normal course, to cause prosecutorial withdrawal or judicial nonapproval of a plea bargain. The determination that there is or is not a reasonable probability that the outcome of the proceeding would have been different absent counsel’s errors can be conducted within that framework.
III
These standards must be applied to the instant case. As regards the deficient performance prong of Strickland, the Court of Appeals found the “record is void of any evidence of any effort by trial counsel to communicate the [formal] Offer to Frye during the Offer window, let alone any evidence that Frye’s conduct interfered with trial counsel’s ability to do so.” On this record, it is evident that Frye’s attorney did not make a meaningful attempt to inform the defendant of a written plea offer before the offer expired. The Missouri Court of Appeals was correct that “counsel’s representation fell below an objective standard of reasonableness.”
The Court of Appeals erred, however, in articulating the precise standard for prejudice in this context. As noted, a defendant in Frye’s position must show not only a reasonable probability that he would have accepted the lapsed plea but also a reasonable probability that the prosecution would have adhered to the agreement and that it would have been accepted by the trial court. Frye can show he would have accepted the offer, but there is strong reason to doubt the prosecution and the trial court would have permitted the plea bargain to become final.
There appears to be a reasonable probability Frye would have accepted the prosecutor’s original offer of a plea bargain if the offer had been communicated to him, because he pleaded guilty to a more serious charge, with no promise of a sentencing recommendation from the prosecutor. It may be that in some cases defendants must show more than just a guilty plea to a charge or sentence harsher than the original offer. For example, revelations between plea offers about the strength of the prosecution’s case may make a late decision to plead guilty insufficient to demonstrate, without further evidence, that the defendant would have pleaded guilty to an earlier, more generous plea offer if his counsel had reported it to him. Here, however, that is not the case. The Court of Appeals did not err in finding Frye’s acceptance of the less favorable plea offer indicated that he would have accepted the earlier (and more favorable) offer had he been apprised of it; and there is no need to address here the showings that might be required in other cases.
The Court of Appeals failed, however, to require Frye to show that the first plea offer, if accepted by Frye, would have been adhered to by the prosecution and accepted by the trial court. Whether the prosecution and trial court are required to do so is a matter of state law, and it is not the place of this Court to settle those matters. The Court has established the minimum requirements of the Sixth Amendment as interpreted in Strickland, and States have the discretion to add procedural protections under state law if they choose. A State may choose to preclude the prosecution from withdrawing a plea offer once it has been accepted or perhaps to preclude a trial court from rejecting a plea bargain. In Missouri, it appears “a plea offer once accepted by the defendant can be withdrawn without recourse” by the prosecution. The extent of the trial court’s discretion in Missouri to reject a plea agreement appears to be in some doubt.
We remand for the Missouri Court of Appeals to consider these state-law questions, because they bear on the federal question of Strickland prejudice. If, as the Missouri court stated here, the prosecutor could have canceled the plea agreement, and if Frye fails to show a reasonable probability the prosecutor would have adhered to the agreement, there is no Strickland prejudice. Likewise, if the trial court could have refused to accept the plea agreement, and if Frye fails to show a reasonable probability the trial court would have accepted the plea, there is no Strickland prejudice. In this case, given Frye’s new offense for driving without a license on December 30, 2007, there is reason to doubt that the prosecution would have adhered to the agreement or that the trial court would have accepted it at the January 4, 2008, hearing, unless they were required by state law to do so.
It is appropriate to allow the Missouri Court of Appeals to address this question in the first instance. The judgment of the Missouri Court of Appeals is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
* * *
As the Frye Court noted, the Court decided in Padilla v. Kentucky that effective representation includes informing a defendant of the “immigration consequences” of a guilty plea. Because immigration law is complicated, and the consequences of a conviction (for example, whether it will lead to the convicted defendant’s removal from the United States) may not be obvious, criminal defense lawyers should obtain assistance from lawyers with immigration expertise.
In our next case, the Court considered whether a lawyer may concede a defendant’s guilt—as part of a strategy to avoid a death sentence—over the client’s objection.
Supreme Court of the United States
Robert Leroy McCoy v. Louisiana
Decided May 14, 2018 – 138 S. Ct. 1500
Justice GINSBURG delivered the opinion of the Court.
In Florida v. Nixon, 543 U.S. 175 (2004), this Court considered whether the Constitution bars defense counsel from conceding a capital defendant’s guilt at trial “when [the] defendant, informed by counsel, neither consents nor objects.” In that case, defense counsel had several times explained to the defendant a proposed guilt-phase concession strategy, but the defendant was unresponsive. We held that when counsel confers with the defendant and the defendant remains silent, neither approving nor protesting counsel’s proposed concession strategy, “[no] blanket rule demand[s] the defendant’s explicit consent” to implementation of that strategy.
In the case now before us, in contrast to Nixon, the defendant vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt. Yet the trial court permitted counsel, at the guilt phase of a capital trial, to tell the jury the defendant “committed three murders…. [H]e’s guilty.” We hold that a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right “to have the Assistance of Counsel for his defence,” the Sixth Amendment so demands. With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.
I
On May 5, 2008, Christine and Willie Young and Gregory Colston were shot and killed in the Youngs’ home in Bossier City, Louisiana. The three victims were the mother, stepfather, and son of Robert McCoy’s estranged wife, Yolanda. Several days later, police arrested McCoy in Idaho. Extradited to Louisiana, McCoy was appointed counsel from the public defender’s office. A Bossier Parish grand jury indicted McCoy on three counts of first-degree murder, and the prosecutor gave notice of intent to seek the death penalty. McCoy pleaded not guilty. Throughout the proceedings, he insistently maintained he was out of State at the time of the killings and that corrupt police killed the victims when a drug deal went wrong. At defense counsel’s request, a court-appointed sanity commission examined McCoy and found him competent to stand trial.
In December 2009 and January 2010, McCoy told the court his relationship with assigned counsel had broken down irretrievably. He sought and gained leave to represent himself until his parents engaged new counsel for him. In March 2010, Larry English, engaged by McCoy’s parents, enrolled as McCoy’s counsel. English eventually concluded that the evidence against McCoy was overwhelming and that, absent a concession at the guilt stage that McCoy was the killer, a death sentence would be impossible to avoid at the penalty phase. McCoy, English reported, was “furious” when told, two weeks before trial was scheduled to begin, that English would concede McCoy’s commission of the triple murders. McCoy told English “not to make that concession,” and English knew of McCoy’s “complet[e] oppos[ition] to [English] telling the jury that [McCoy] was guilty of killing the three victims”; instead of any concession, McCoy pressed English to pursue acquittal.
At a July 26, 2011 hearing, McCoy sought to terminate English’s representation, and English asked to be relieved if McCoy secured other counsel. With trial set to start two days later, the court refused to relieve English and directed that he remain as counsel of record. “[Y]ou are the attorney,” the court told English when he expressed disagreement with McCoy’s wish to put on a defense case, and “you have to make the trial decision of what you’re going to proceed with.”
At the beginning of his opening statement at the guilt phase of the trial, English told the jury there was “no way reasonably possible” that they could hear the prosecution’s evidence and reach “any other conclusion than Robert McCoy was the cause of these individuals’ death.” McCoy protested; out of earshot of the jury, McCoy told the court that English was “selling [him] out” by maintaining that McCoy “murdered [his] family.” The trial court reiterated that English was “representing” McCoy and told McCoy that the court would not permit “any other outbursts.” Continuing his opening statement, English told the jury the evidence is “unambiguous,” “my client committed three murders.” McCoy testified in his own defense, maintaining his innocence and pressing an alibi difficult to fathom. In his closing argument, English reiterated that McCoy was the killer. On that issue, English told the jury that he “took [the] burden off of [the prosecutor].” The jury then returned a unanimous verdict of guilty of first-degree murder on all three counts. At the penalty phase, English again conceded “Robert McCoy committed these crimes,” but urged mercy in view of McCoy’s “serious mental and emotional issues.” The jury returned three death verdicts.
Represented by new counsel, McCoy unsuccessfully moved for a new trial, arguing that the trial court violated his constitutional rights by allowing English to concede McCoy “committed three murders” over McCoy’s objection. The Louisiana Supreme Court affirmed the trial court’s ruling that defense counsel had authority so to concede guilt, despite the defendant’s opposition to any admission of guilt.
We granted certiorari in view of a division of opinion among state courts of last resort on the question whether it is unconstitutional to allow defense counsel to concede guilt over the defendant’s intransigent and unambiguous objection.
A
The Sixth Amendment guarantees to each criminal defendant “the Assistance of Counsel for his defence.” At common law, self-representation was the norm. As the laws of England and the American Colonies developed, providing for a right to counsel in criminal cases, self-representation remained common and the right to proceed without counsel was recognized. Even now, when most defendants choose to be represented by counsel, an accused may insist upon representing herself—however counterproductive that course may be. As this Court explained, “[t]he right to defend is personal,” and a defendant’s choice in exercising that right “must be honored out of ‘that respect for the individual which is the lifeblood of the law.’”
The choice is not all or nothing: To gain assistance, a defendant need not surrender control entirely to counsel. For the Sixth Amendment, in “grant[ing] to the accused personally the right to make his defense,” “speaks of the ‘assistance’ of counsel, and an assistant, however expert, is still an assistant.” Trial management is the lawyer’s province: Counsel provides his or her assistance by making decisions such as “what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.” Some decisions, however, are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.
Autonomy to decide that the objective of the defense is to assert innocence belongs in this latter category. Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial. These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are.
Counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty, as English did in this case. But the client may not share that objective. He may wish to avoid, above all else, the opprobrium that comes with admitting he killed family members. Or he may hold life in prison not worth living and prefer to risk death for any hope, however small, of exoneration. When a client expressly asserts that the objective of “his defence” is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.
Preserving for the defendant the ability to decide whether to maintain his innocence should not displace counsel’s, or the court’s, respective trial management roles. Counsel, in any case, must still develop a trial strategy and discuss it with her client, explaining why, in her view, conceding guilt would be the best option. In this case, the court had determined that McCoy was competent to stand trial, i.e., that McCoy had “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” If, after consultations with English concerning the management of the defense, McCoy disagreed with English’s proposal to concede McCoy committed three murders, it was not open to English to override McCoy’s objection. English could not interfere with McCoy’s telling the jury “I was not the murderer,” although counsel could, if consistent with providing effective assistance, focus his own collaboration on urging that McCoy’s mental state weighed against conviction.
III
Because a client’s autonomy, not counsel’s competence, is in issue, we do not apply our ineffective-assistance-of-counsel jurisprudence to McCoy’s claim. To gain redress for attorney error, a defendant ordinarily must show prejudice. Here, however, the violation of McCoy’s protected autonomy right was complete when the court allowed counsel to usurp control of an issue within McCoy’s sole prerogative.
Violation of a defendant’s Sixth Amendment-secured autonomy ranks as error of the kind our decisions have called “structural”; when present, such an error is not subject to harmless-error review. Structural error “affect[s] the framework within which the trial proceeds,” as distinguished from a lapse or flaw that is “simply an error in the trial process itself.” An error may be ranked structural, we have explained, “if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest,” such as “the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty.” An error might also count as structural when its effects are too hard to measure, as is true of the right to counsel of choice, or where the error will inevitably signal fundamental unfairness, as we have said of a judge’s failure to tell the jury that it may not convict unless it finds the defendant’s guilt beyond a reasonable doubt.
Under at least the first two rationales, counsel’s admission of a client’s guilt over the client’s express objection is error structural in kind. Such an admission blocks the defendant’s right to make the fundamental choices about his own defense. And the effects of the admission would be immeasurable, because a jury would almost certainly be swayed by a lawyer’s concession of his client’s guilt. McCoy must therefore be accorded a new trial without any need first to show prejudice.
Larry English was placed in a difficult position; he had an unruly client and faced a strong government case. He reasonably thought the objective of his representation should be avoidance of the death penalty. But McCoy insistently maintained: “I did not murder my family.” Once he communicated that to court and counsel, strenuously objecting to English’s proposed strategy, a concession of guilt should have been off the table. The trial court’s allowance of English’s admission of McCoy’s guilt despite McCoy’s insistent objections was incompatible with the Sixth Amendment. Because the error was structural, a new trial is the required corrective.
For the reasons stated, the judgment of the Louisiana Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Justice ALITO, with whom Justice THOMAS and Justice GORSUCH join, dissenting.
The Constitution gives us the authority to decide real cases and controversies; we do not have the right to simplify or otherwise change the facts of a case in order to make our work easier or to achieve a desired result. But that is exactly what the Court does in this case. The Court overturns petitioner’s convictions for three counts of first-degree murder by attributing to his trial attorney, Larry English, something that English never did. The Court holds that English violated petitioner’s constitutional rights by “admit[ting] h[is] client’s guilt of a charged crime over the client’s intransigent objection.” But English did not admit that petitioner was guilty of first-degree murder. Instead, faced with overwhelming evidence that petitioner shot and killed the three victims, English admitted that petitioner committed one element of that offense, i.e., that he killed the victims. But English strenuously argued that petitioner was not guilty of first-degree murder because he lacked the intent (the mens rea) required for the offense. So the Court’s newly discovered fundamental right simply does not apply to the real facts of this case.
The real case is far more complex. Indeed, the real situation English faced at the beginning of petitioner’s trial was the result of a freakish confluence of factors that is unlikely to recur.
Retained by petitioner’s family, English found himself in a predicament as the trial date approached. The evidence against his client was truly “overwhelming,” as the Louisiana Supreme Court aptly noted. Among other things, the evidence showed the following. Before the killings took place, petitioner had abused and threatened to kill his wife, and she was therefore under police protection. On the night of the killings, petitioner’s mother-in-law made a 911 call and was heard screaming petitioner’s first name. She yelled: “‘She ain’t here, Robert … I don’t know where she is. The detectives have her. Talk to the detectives. She ain’t in there, Robert.’” Moments later, a gunshot was heard, and the 911 call was disconnected.
Officers were dispatched to the scene, and on arrival, they found three dead or dying victims—petitioner’s mother-in-law, her husband, and the teenage son of petitioner’s wife. The officers saw a man who fit petitioner’s description fleeing in petitioner’s car. They chased the suspect, but he abandoned the car along with critical evidence linking him to the crime: the cordless phone petitioner’s mother-in-law had used to call 911 and a receipt for the type of ammunition used to kill the victims. Petitioner was eventually arrested while hitchhiking in Idaho, and a loaded gun found in his possession was identified as the one used to shoot the victims. In addition to all this, a witness testified that petitioner had asked to borrow money to purchase bullets shortly before the shootings, and surveillance footage showed petitioner purchasing the ammunition on the day of the killings. And two of petitioner’s friends testified that he confessed to killing at least one person.
Despite all this evidence, petitioner, who had been found competent to stand trial and had refused to plead guilty by reason of insanity, insisted that he did not kill the victims. He claimed that the victims were killed by the local police and that he had been framed by a farflung conspiracy of state and federal officials, reaching from Louisiana to Idaho. Petitioner believed that even his attorney and the trial judge had joined the plot.
The weekend before trial, … [h]e asked the trial court to replace English, and English asked for permission to withdraw. Petitioner stated that he had secured substitute counsel, but he was unable to provide the name of this new counsel, and no new attorney ever appeared. The court refused these requests and also denied petitioner’s last-minute request to represent himself. (Petitioner does not challenge these decisions here.) So petitioner and English were stuck with each other, and petitioner availed himself of his right to take the stand to tell his wild story. Under those circumstances, what was English supposed to do?
The Louisiana Supreme Court held that English could not have put on petitioner’s desired defense without violating state ethics rules, but this Court effectively overrules the state court on this issue of state law. However, even if it is assumed that the Court is correct on this ethics issue, the result of mounting petitioner’s conspiracy defense almost certainly would have been disastrous. That approach stood no chance of winning an acquittal and would have severely damaged English’s credibility in the eyes of the jury, thus undermining his ability to argue effectively against the imposition of a death sentence at the penalty phase of the trial. As English observed, taking that path would have only “help[ed] the District Attorney send [petitioner] to the death chamber.” So, again, what was English supposed to do?
When pressed at oral argument before this Court, petitioner’s current counsel eventually provided an answer: English was not required to take any affirmative steps to support petitioner’s bizarre defense, but instead of conceding that petitioner shot the victims, English should have ignored that element entirely. So the fundamental right supposedly violated in this case comes down to the difference between the two statements set out below.
Constitutional: “First-degree murder requires proof both that the accused killed the victim and that he acted with the intent to kill. I submit to you that my client did not have the intent required for conviction for that offense.”
Unconstitutional: “First-degree murder requires proof both that the accused killed the victim and that he acted with the intent to kill. I admit that my client shot and killed the victims, but I submit to you that he did not have the intent required for conviction for that offense.”
The practical difference between these two statements is negligible. If English had conspicuously refrained from endorsing petitioner’s story and had based his defense solely on petitioner’s dubious mental condition, the jury would surely have gotten the message that English was essentially conceding that petitioner killed the victims. But according to petitioner’s current attorney, the difference is fundamental. The first formulation, he admits, is perfectly fine. The latter, on the other hand, is a violation so egregious that the defendant’s conviction must be reversed even if there is no chance that the misstep caused any harm. It is no wonder that the Court declines to embrace this argument and instead turns to an issue that the case at hand does not actually present.
The constitutional right that the Court has now discovered—a criminal defendant’s right to insist that his attorney contest his guilt with respect to all charged offenses—is like a rare plant that blooms every decade or so. Having made its first appearance today, the right is unlikely to figure in another case for many years to come. Why is this so?
First, it is hard to see how the right could come into play in any case other than a capital case in which the jury must decide both guilt and punishment. In all other cases, guilt is almost always the only issue for the jury, and therefore admitting guilt of all charged offenses will achieve nothing. It is hard to imagine a situation in which a competent attorney might take that approach. So the right that the Court has discovered is effectively confined to capital cases.
Second, few rational defendants facing a possible death sentence are likely to insist on contesting guilt where there is no real chance of acquittal and where admitting guilt may improve the chances of avoiding execution. Indeed, under such circumstances, the odds are that a rational defendant will plead guilty in exchange for a life sentence. By the same token, an attorney is unlikely to insist on admitting guilt over the defendant’s objection unless the attorney believes that contesting guilt would be futile. So the right is most likely to arise in cases involving irrational capital defendants.
Third, where a capital defendant and his retained attorney cannot agree on a basic trial strategy, the attorney and client will generally part ways unless, as in this case, the court is not apprised until the eve of trial. The client will then either search for another attorney or decide to represent himself. So the field of cases in which this right might arise is limited further still—to cases involving irrational capital defendants who disagree with their attorneys’ proposed strategy yet continue to retain them.
Fourth, if counsel is appointed, and unreasonably insists on admitting guilt over the defendant’s objection, a capable trial judge will almost certainly grant a timely request to appoint substitute counsel. And if such a request is denied, the ruling may be vulnerable on appeal.
Finally, even if all the above conditions are met, the right that the Court now discovers will not come into play unless the defendant expressly protests counsel’s strategy of admitting guilt. Where the defendant is advised of the strategy and says nothing, or is equivocal, the right is deemed to have been waived.
Notes, Comments, and Questions
In general, courts reviewing claims of ineffective assistance of counsel are deferential to decisions by lawyers that can plausibly be described as “strategy.” Notwithstanding the result in McCoy, lawyers enjoy broad latitude to decide how to achieve a client’s objectives, and judges rarely second guess choices simply because bad results followed. By contrast, ineffective assistance claims have greater success when a lawyer’s action (or inaction) appears driven by laziness rather than by tactics.
For example, a lawyer who interviews a potential alibi witness and chooses not to call her as a trial witness can later explain the strategy behind the choice. Perhaps the witness seemed shifty and counsel feared the jury would think poorly of a defendant who called such a witness. But if a client tells a lawyer of a potential alibi witness, and the lawyer conducts no investigation, the lawyer may have trouble justifying that choice.
Relatedly, defense lawyers have a duty to obtain expert testimony in cases where any reasonable lawyer would do so. An insanity defense, for example, will normally require expert testimony about the client’s mental health.
A few examples help illustrate the sorts of failings that constitute ineffective assistance:
In Hinton v. Alabama, 571 U.S. 263 (2014), the lawyer in a capital case had failed to obtain a qualified expert on “firearms and toolmark” evidence, largely because the lawyer erroneously believed that state law authorized only \$1,000 for the cost of an expert. The Court held, “The trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance.” Subsequently, Hinton was exonerated and released after thirty years in prison. He tells his story in The Sun Does Shine: How I Found Life and Freedom on Death Row (2018).
In Wiggins v. Smith, 539 U.S. 510 (2003), the Court found ineffective assistance in the penalty phase of a capital case after trial counsel failed to conduct an adequate investigation into the defendant’s background. “Counsel’s decision not to expand their investigation beyond the [presentence investigation (PSI) report] and the [Baltimore City Department of Social Services (DSS)] records fell short of the professional standards that prevailed in Maryland in 1989.”
In Rompilla v. Beard, 545 U.S. 374 (2005), the Court found ineffective assistance in a lawyer’s failure to examine a capital defendant’s prior case files. “Counsel knew that the Commonwealth intended to seek the death penalty by proving Rompilla had a significant history of felony convictions indicating the use or threat of violence, an aggravator under state law. … [I]t is difficult to see how counsel could have failed to realize that without examining the readily available file they were seriously compromising their opportunity to respond to a case for aggravation.”
Rompilla offers insight on how changes to Court membership can affect constitutional law. Justice Sandra Day O’Connor voted with the majority, and the case was decided 5-4. (She joined the majority opinion and also filed a concurrence.) About two weeks afterward, O’Connor announced her retirement. O’Connor’s seat on the Court was then filled by Justice Samuel Alito, who joined the Court in 2006. As it happens, the Third Circuit judgment reversed by the Supreme Court in Rompilla was explained in an opinion written by then-Circuit Judge Alito. See 355 F.3d 233. Would a case with similar facts be decided the same way today?
Self-Representation by Criminal Defendants
In Faretta v. California, 422 U.S. 806 (1975), the Court considered “whether a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.” The Court said that another way to frame the question was “whether a State may constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense.”
In an opinion by Justice Stewart, the Court noted that a defendant’s right to represent himself in criminal cases had long been recognized in America. “In the federal courts, the right of self-representation has been protected by statute since the beginnings of our Nation. With few exceptions, each of the several States also accords a defendant the right to represent himself in any criminal case. The constitutions of 36 States explicitly confer that right. Moreover, many state courts have expressed the view that the right is also supported by the Constitution of the United States.” Recognizing that longstanding practice has its own persuasive authority, the Court wrote, “We confront here a nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so.”
The Court noted, too, that the Sixth Amendment provides the defendant with various rights; the rights are not provided to the lawyer. “The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be ‘informed of the nature and cause of the accusation,’ who must be ‘confronted with the witnesses against him,’ and who must be accorded ‘compulsory process for obtaining witnesses in his favor.’ Although not stated in the Amendment in so many words, the right to self-representation—to make one’s own defense personally—is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.”
The Court then decided that even though a defendant would normally be extraordinarily foolish to forgo the assistance of counsel in favor of self-representation, the Constitution provides the option:
“It is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer’s training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him. Moreover, it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense. Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage.”
When a defendant wishes to forgo counsel, a trial judge must advise the defendant carefully of the consequences. The decision then belongs to the defendant.
The Court’s decision inspired a spirited dissent.
Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN and Mr. Justice REHNQUIST join, dissenting.
This case [] is another example of the judicial tendency to constitutionalize what is thought “good.” That effort fails on its own terms here, because there is nothing desirable or useful in permitting every accused person, even the most uneducated and inexperienced, to insist upon conducting his own defense to criminal charges. Moreover, there is no constitutional basis for the Court’s holding, and it can only add to the problems of an already malfunctioning criminal justice system. I therefore dissent.
The fact of the matter is that in all but an extraordinarily small number of cases an accused will lose whatever defense he may have if he undertakes to conduct the trial himself. The Court’s opinion in Powell v. Alabama puts the point eloquently:
“Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.”
Obviously, these considerations do not vary depending upon whether the accused actively desires to be represented by counsel or wishes to proceed pro se. Nor is it accurate to suggest, as the Court seems to later in its opinion, that the quality of his representation at trial is a matter with which only the accused is legitimately concerned. Although we have adopted an adversary system of criminal justice, the prosecution is more than an ordinary litigant, and the trial judge is not simply an automaton who insures that technical rules are adhered to. Both are charged with the duty of insuring that justice, in the broadest sense of that term, is achieved in every criminal trial. That goal is ill-served, and the integrity of and public confidence in the system are undermined, when an easy conviction is obtained due to the defendant’s ill-advised decision to waive counsel. The damage thus inflicted is not mitigated by the lame explanation that the defendant simply availed himself of the “freedom” “to go to jail under his own banner ….” The system of criminal justice should not be available as an instrument of self-destruction.
In short, both the “spirit and the logic” of the Sixth Amendment are that every person accused of crime shall receive the fullest possible defense; in the vast majority of cases this command can be honored only by means of the expressly guaranteed right to counsel, and the trial judge is in the best position to determine whether the accused is capable of conducting his defense. True freedom of choice and society’s interest in seeing that justice is achieved can be vindicated only if the trial court retains discretion to reject any attempted waiver of counsel and insist that the accused be tried according to the Constitution. This discretion is as critical an element of basic fairness as a trial judge’s discretion to decline to accept a plea of guilty.
Society has the right to expect that, when courts find new rights implied in the Constitution, their potential effect upon the resources of our criminal justice system will be considered. However, such considerations are conspicuously absent from the Court’s opinion in this case.
Notes, Comments, and Questions
After the Court decided Faretta, a few sensational cases followed in which criminal defendants represented themselves in especially ineffective ways, perhaps causing embarrassment to the judicial system in addition to themselves. The case of Colin Ferguson, who shot fellow passengers on a Long Island Rail Road train in 1993, became especially famous. Ferguson killed six passengers and shot several others. He later represented himself at trial, questioning victims he had shot. He referred to himself in the third person, stating, for example, that “at the time that Mr. Ferguson was on the train,” he fell asleep and then someone else took his gun.
He asked one witness, “Is it your testimony that the defendant Ferguson stood right in front of you and shot you?”
The witness answered, “You weren’t right in front of me. You were about ten to twelve feet away, approximately the distance we’re at about now.”
His performance was parodied on Saturday Night Live. “I did not shoot them. They shot me,” the SNL Ferguson said in his opening statement. He continued, “There is no such thing as a ‘railroad’ or a ‘Long Island.’ Colin Ferguson is the victim of a conspiracy.”
Do cases like these show that Faretta is wrongly decided, or are they a necessary evil associated with vindicating the rights explained by the Court?
In Indiana v. Edwards, the Court considered how to apply Faretta to defendants who may lack the mental competence to conduct their own defense. Students should note that the mental state of a defendant can be evaluated at three different times (at least) for different purposes. For a defense based on insanity or mental disease or defect, the question is what mental state the defendant had at the moment she committed an offense. Regardless of the defendant’s mental state at the crime scene, a court may deem someone incompetent to stand trial if she is unable to understand the character and consequences of the proceedings against her or is unable properly to assist in her defense (that is, to communicate with counsel about defense strategies). Finally, there is the question of whether a defendant who is competent to stand trial might nonetheless be incompetent to represent himself. The Edwards Court decided whether such a category of defendants exists and, if so, how trial courts should deal with them.
Supreme Court of the United States
Indiana v. Ahmad Edwards
Decided June 19, 2008 – 554 U.S. 164
Justice BREYER delivered the opinion of the Court.
This case focuses upon a criminal defendant whom a state court found mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself. We must decide whether in these circumstances the Constitution prohibits a State from insisting that the defendant proceed to trial with counsel, the State thereby denying the defendant the right to represent himself. We conclude that the Constitution does not forbid a State so to insist.
I
In July 1999, Ahmad Edwards, the respondent, tried to steal a pair of shoes from an Indiana department store. After he was discovered, he drew a gun, fired at a store security officer, and wounded a bystander. He was caught and then charged with attempted murder, battery with a deadly weapon, criminal recklessness, and theft. His mental condition subsequently became the subject of three competency proceedings and two self-representation requests, mostly before the same trial judge:
1. First Competency Hearing: August 2000. Five months after Edwards’ arrest, his court-appointed counsel asked for a psychiatric evaluation. After hearing psychiatrist and neuropsychologist witnesses (in February 2000 and again in August 2000), the court found Edwards incompetent to stand trial, and committed him to Logansport State Hospital for evaluation and treatment.
2. Second Competency Hearing: March 2002. Seven months after his commitment, doctors found that Edwards’ condition had improved to the point where he could stand trial. Several months later, however, but still before trial, Edwards’ counsel asked for another psychiatric evaluation. In March 2002, the judge held a competency hearing, considered additional psychiatric evidence, and (in April) found that Edwards, while “suffer[ing] from mental illness,” was “competent to assist his attorneys in his defense and stand trial for the charged crimes.”
3. Third Competency Hearing: April 2003. Seven months later but still before trial, Edwards’ counsel sought yet another psychiatric evaluation of his client. And, in April 2003, the court held yet another competency hearing. Edwards’ counsel presented further psychiatric and neuropsychological evidence showing that Edwards was suffering from serious thinking difficulties and delusions. A testifying psychiatrist reported that Edwards could understand the charges against him, but he was “unable to cooperate with his attorney in his defense because of his schizophrenic illness”; “[h]is delusions and his marked difficulties in thinking make it impossible for him to cooperate with his attorney.” In November 2003, the court concluded that Edwards was not then competent to stand trial and ordered his recommitment to the state hospital.
4. First Self-Representation Request and First Trial: June 2005. About eight months after his commitment, the hospital reported that Edwards’ condition had again improved to the point that he had again become competent to stand trial. And almost one year after that, Edwards’ trial began. Just before trial, Edwards asked to represent himself. He also asked for a continuance, which, he said, he needed in order to proceed pro se. The court refused the continuance. Edwards then proceeded to trial represented by counsel. The jury convicted him of criminal recklessness and theft but failed to reach a verdict on the charges of attempted murder and battery.
5. Second Self–Representation Request and Second Trial: December 2005. The State decided to retry Edwards on the attempted murder and battery charges. Just before the retrial, Edwards again asked the court to permit him to represent himself. Referring to the lengthy record of psychiatric reports, the trial court noted that Edwards still suffered from schizophrenia and concluded that “[w]ith these findings, he’s competent to stand trial but I’m not going to find he’s competent to defend himself.” The court denied Edwards’ self-representation request. Edwards was represented by appointed counsel at his retrial. The jury convicted Edwards on both of the remaining counts.
Edwards subsequently appealed to Indiana’s intermediate appellate court. He argued that the trial court’s refusal to permit him to represent himself at his retrial deprived him of his constitutional right of self-representation. The court agreed and ordered a new trial. The matter then went to the Indiana Supreme Court. That court found that “[t]he record in this case presents a substantial basis to agree with the trial court,” but it nonetheless affirmed the intermediate appellate court. At Indiana’s request, we agreed to consider whether the Constitution required the trial court to allow Edwards to represent himself at trial.
II
Our examination of this Court’s precedents convinces us that those precedents frame the question presented, but they do not answer it. The two cases that set forth the Constitution’s “mental competence” standard, Dusky v. United States, 362 U.S. 402 (1960) (per curiam), and Drope v. Missouri, 420 U.S. 162 (1975), specify that the Constitution does not permit trial of an individual who lacks “mental competency.” Dusky defines the competency standard as including both (1) “whether” the defendant has “a rational as well as factual understanding of the proceedings against him” and (2) whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” Drope repeats that standard, stating that it “has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” Neither case considered the mental competency issue presented here, namely, the relation of the mental competence standard to the right of self-representation.
The Court’s foundational “self-representation” case, Faretta, held that the Sixth and Fourteenth Amendments include a “constitutional right to proceed without counsel when” a criminal defendant “voluntarily and intelligently elects to do so.” The Court implied that right from: (1) a “nearly universal conviction,” made manifest in state law, that “forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so”; (2) Sixth Amendment language granting rights to the “accused”; (3) Sixth Amendment structure indicating that the rights it sets forth, related to the “fair administration of American justice,” are “persona[l]” to the accused; (4) the absence of historical examples of forced representation; and (5) “‘respect for the individual.’”
Faretta does not answer the question before us both because it did not consider the problem of mental competency and because Faretta itself and later cases have made clear that the right of self-representation is not absolute. The question here concerns a mental-illness-related limitation on the scope of the self-representation right.
The sole case in which this Court considered mental competence and self-representation together, Godinez [v. Moran, 509 U.S. 389 (1993)], presents a question closer to that at issue here. The case focused upon a borderline-competent criminal defendant who had asked a state trial court to permit him to represent himself and to change his pleas from not guilty to guilty. The state trial court had found that the defendant met Dusky’s mental competence standard, that he “knowingly and intelligently” waived his right to assistance of counsel, and that he “freely and voluntarily” chose to plead guilty. And the state trial court had consequently granted the defendant’s self-representation and change-of-plea requests. A federal appeals court, however, had vacated the defendant’s guilty pleas on the ground that the Constitution required the trial court to ask a further question, namely, whether the defendant was competent to waive his constitutional right to counsel. Competence to make that latter decision, the appeals court said, required the defendant to satisfy a higher mental competency standard than the standard set forth in Dusky. Dusky’s more general standard sought only to determine whether a defendant represented by counsel was competent to stand trial, not whether he was competent to waive his right to counsel.
This Court, reversing the Court of Appeals, “reject[ed] the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard.” The decision to plead guilty, we said, “is no more complicated than the sum total of decisions that a [represented] defendant may be called upon to make during the course of a trial.” Hence “there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights.” And even assuming that self-representation might pose special trial-related difficulties, “the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” For this reason, we concluded, “the defendant’s ‘technical legal knowledge’ is ‘not relevant’ to the determination.”
We concede that Godinez bears certain similarities with the present case. Both involve mental competence and self-representation. Both involve a defendant who wants to represent himself. Both involve a mental condition that falls in a gray area between Dusky’s minimal constitutional requirement that measures a defendant’s ability to stand trial and a somewhat higher standard that measures mental fitness for another legal purpose.
We nonetheless conclude that Godinez does not answer the question before us now. In part that is because the Court of Appeals’ higher standard at issue in Godinez differs in a critical way from the higher standard at issue here. In Godinez, the higher standard sought to measure the defendant’s ability to proceed on his own to enter a guilty plea; here the higher standard seeks to measure the defendant’s ability to conduct trial proceedings. To put the matter more specifically, the Godinez defendant sought only to change his pleas to guilty, he did not seek to conduct trial proceedings, and his ability to conduct a defense at trial was expressly not at issue. Thus we emphasized in Godinez that we needed to consider only the defendant’s “competence to waive the right.” And we further emphasized that we need not consider the defendant’s “technical legal knowledge” about how to proceed at trial. We found our holding consistent with this Court’s earlier statement that “[o]ne might not be insane in the sense of being incapable of standing trial and yet lack the capacity to stand trial without benefit of counsel.” In this case, the very matters that we did not consider in Godinez are directly before us.
III
We now turn to the question presented. We assume that a criminal defendant has sufficient mental competence to stand trial (i.e., the defendant meets Dusky’s standard) and that the defendant insists on representing himself during that trial. We ask whether the Constitution permits a State to limit that defendant’s self-representation right by insisting upon representation by counsel at trial—on the ground that the defendant lacks the mental capacity to conduct his trial defense unless represented.
Several considerations taken together lead us to conclude that the answer to this question is yes. First, the Court’s precedent, while not answering the question, points slightly in the direction of our affirmative answer. Godinez, as we have just said, simply leaves the question open. But the Court’s “mental competency” cases set forth a standard that focuses directly upon a defendant’s “present ability to consult with his lawyer”; a “capacity … to consult with counsel”; and an ability “to assist [counsel] in preparing his defense.” These standards assume representation by counsel and emphasize the importance of counsel. They thus suggest (though do not hold) that an instance in which a defendant who would choose to forgo counsel at trial presents a very different set of circumstances, which in our view, calls for a different standard.
At the same time Faretta, the foundational self-representation case, rested its conclusion in part upon pre-existing state law set forth in cases all of which are consistent with, and at least two of which expressly adopt, a competency limitation on the self-representation right.
Second, the nature of the problem before us cautions against the use of a single mental competency standard for deciding both (1) whether a defendant who is represented by counsel can proceed to trial and (2) whether a defendant who goes to trial must be permitted to represent himself. Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It interferes with an individual’s functioning at different times in different ways. The history of this case illustrates the complexity of the problem. In certain instances an individual may well be able to satisfy Dusky’s mental competence standard, for he will be able to work with counsel at trial, yet at the same time he may be unable to carry out the basic tasks needed to present his own defense without the help of counsel.
The American Psychiatric Association (APA) tells us (without dispute) in its amicus brief filed in support of neither party that “[d]isorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety, and other common symptoms of severe mental illnesses can impair the defendant’s ability to play the significantly expanded role required for self-representation even if he can play the lesser role of represented defendant.” Motions and other documents that the defendant prepared in this case suggest to a layperson the common sense of this general conclusion.
Third, in our view, a right of self-representation at trial will not “affirm the dignity” of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel. To the contrary, given that defendant’s uncertain mental state, the spectacle that could well result from his self-representation at trial is at least as likely to prove humiliating as ennobling. Moreover, insofar as a defendant’s lack of capacity threatens an improper conviction or sentence, self-representation in that exceptional context undercuts the most basic of the Constitution’s criminal law objectives, providing a fair trial.
Further, proceedings must not only be fair, they must “appear fair to all who observe them.” An amicus brief reports one psychiatrist’s reaction to having observed a patient (a patient who had satisfied Dusky) try to conduct his own defense: “[H]ow in the world can our legal system allow an insane man to defend himself?” The application of Dusky’s basic mental competence standard can help in part to avoid this result. But given the different capacities needed to proceed to trial without counsel, there is little reason to believe that Dusky alone is sufficient. At the same time, the trial judge, particularly one such as the trial judge in this case, who presided over one of Edwards’ competency hearings and his two trials, will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant.
We consequently conclude that the Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.
Justice SCALIA, with whom Justice THOMAS joins, dissenting.
The Constitution guarantees a defendant who knowingly and voluntarily waives the right to counsel the right to proceed pro se at his trial. Faretta v. California. A mentally ill defendant who knowingly and voluntarily elects to proceed pro se instead of through counsel receives a fair trial that comports with the Fourteenth Amendment. Godinez v. Moran. The Court today concludes that a State may nonetheless strip a mentally ill defendant of the right to represent himself when that would be fairer. In my view the Constitution does not permit a State to substitute its own perception of fairness for the defendant’s right to make his own case before the jury—a specific right long understood as essential to a fair trial.
When a defendant appreciates the risks of forgoing counsel and chooses to do so voluntarily, the Constitution protects his ability to present his own defense even when that harms his case. In fact waiving counsel “usually” does so. We have nonetheless said that the defendant’s “choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’” What the Constitution requires is not that a State’s case be subject to the most rigorous adversarial testing possible—after all, it permits a defendant to eliminate all adversarial testing by pleading guilty. What the Constitution requires is that a defendant be given the right to challenge the State’s case against him using the arguments he sees fit.
In Godinez, we held that the Due Process Clause posed no barrier to permitting a defendant who suffered from mental illness both to waive his right to counsel and to plead guilty, so long as he was competent to stand trial and knowingly and voluntarily waived trial and the counsel right. It was “never the rule at common law” that a defendant could be competent to stand trial and yet incompetent to either exercise or give up some of the rights provided for his defense. We rejected the invitation to craft a higher competency standard for waiving counsel than for standing trial. That proposal, we said, was built on the “flawed premise” that a defendant’s “competence to represent himself” was the relevant measure: “[T]he competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” We grounded this on Faretta’s candid acknowledgment that the Sixth Amendment protected the defendant’s right to conduct a defense to his disadvantage.
While there is little doubt that preserving individual “‘dignity’” (to which the Court refers) is paramount among those purposes [for which the right of self-representation was intended], there is equally little doubt that the loss of “dignity” the right is designed to prevent is not the defendant’s making a fool of himself by presenting an amateurish or even incoherent defense. Rather, the dignity at issue is the supreme human dignity of being master of one’s fate rather than a ward of the State—the dignity of individual choice.
Because I think a defendant who is competent to stand trial, and who is capable of knowing and voluntary waiver of assistance of counsel, has a constitutional right to conduct his own defense, I respectfully dissent.
* * *
Our next few chapters concern eyewitness identifications evidence. We will examine first when the Court has held that a suspect has the right to have counsel attend an identification procedure such as a lineup. Then we will consider substantive regulations on the quality of such procedures, along with best practices for identifications suggested by modern social science. | textbooks/biz/Criminal_Law/Criminal_Procedure%3A_A_Free_Law_School_Casebook_2e_(Alexander_and_Trachtenberg)/05%3A_The_Right_to_Counsel/5.02%3A_Chapter_37_-_Self-Representation_and_More_on_Ineffective_Assistance.txt |
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